Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Year 2000 Biennial Regulatory Review -- Amendment of Part 22 of the
Commission's Rules to Modify or Eliminate Outdated Rules Affecting the
Cellular Radiotelephone Service and other Commercial Mobile Radio
Services

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) WT Docket No.  01‑108

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NOTICE OF PROPOSED RULEMAKING

**Adopted: May 3, 2001**

**Released: May 17, 2001**

**Comment Date: July 2, 2001**

**Reply Comment Date: August 1, 2001**

By the Commission: Commissioner Tristani issuing a separate statement.

TABLE OF CONTENTS

> Paragraph
>
> APPENDIX A: Proposed Rule Changes
> [2](#appendix-a-proposed-rule-changes)

I. INTRODUCTION [2](#introduction)

II\. BACKGROUND [4](#background)

III\. DISCUSSION [5](#discussion)

A. General Cellular Rules: Cellular Service Requirements and Limitations
[6](#general-cellular-rules-cellular-service-requirements-and-limitations)

B. Cellular Technical Rules [8](#cellular-technical-rules)

1\. Analog Cellular Compatibility Standard
[9](#analog-cellular-compatibility-standard)

2\. Electronic Serial Number Rule [15](#electronic-serial-number-rule)

3\. Channelization Requirements [17](#channelization-requirements)

4\. Modulation Requirements and In-band Emissions Limitations
[17](#modulation-requirements-and-in-band-emissions-limitations)

5\. Wave Polarization Requirement [19](#wave-polarization-requirement)

6\. Assignment of System Identification Numbers
[21](#assignment-of-system-identification-numbers)

7\. Determination of Cellular Geographic Service Area
[22](#determination-of-cellular-geographic-service-area)

8\. Service Commencement and Construction Periods
[23](#service-commencement-and-construction-periods)

C. Incidental Services Rule [24](#incidental-services-rule)

D. Cellular Anti-Trafficking Rules
[26](#cellular-anti-trafficking-rules)

IV\. ADMINISTRATIVE MATTERS [30](#administrative-matters)

A. Initial Regulatory Flexibility Act
[30](#initial-regulatory-flexibility-act)

B. Paperwork Reduction Act [30](#paperwork-reduction-act)

C. *Ex Parte* Rules [31](#ex-parte-rules)

D. Filing of Comments and Reply Comments
[31](#filing-of-comments-and-reply-comments)

V. ORDERING CLAUSES [32](#ordering-clauses)

PROPOSED RULE CHANGES [34](#proposed-rule-changes)

A. Need for, and Objectives of, the Proposed Rules
[41](#need-for-and-objectives-of-the-proposed-rules)

B. Certification Regarding Broadband PCS
[42](#certification-regarding-broadband-pcs)

C. Legal Basis [42](#legal-basis)

D. Description and Estimate of the Small Entities Subject to the Rules
[43](#description-and-estimate-of-the-small-entities-subject-to-the-rules)

E. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
[46](#description-of-projected-reporting-recordkeeping-and-other-compliance-requirements)

F. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
[46](#steps-taken-to-minimize-significant-economic-impact-on-small-entities-and-significant-alternatives-considered)

G. Federal Rules that May Duplicate, Overlap or Conflict with the
Proposed Rules
[47](#federal-rules-that-may-duplicate-overlap-or-conflict-with-the-proposed-rules)

SEPARATE STATEMENT OF [48](#separate-statement-of)

COMMISSIONER GLORIA TRISTANI [48](#commissioner-gloria-tristani)

## APPENDIX A: Proposed Rule Changes {#appendix-a-proposed-rule-changes .unnumbered}

**APPENDIX B: Initial Regulatory Flexibility Analysis**

#  INTRODUCTION

1.  In this Notice of Proposed Rulemaking (*Notice*), we propose to
    amend Part 22 of our rules to modify or eliminate regulations that
    have become outdated as a result of technological change, increased
    competition in the Commercial Mobile Radio Services (CMRS),
    supervening changes to related Commission rules, or a combination of
    these factors. We focus particularly on the rules in Part 22,
    Subpart I that govern the Cellular Radiotelephone Service
    (cellular), but we also consider modification or elimination of
    certain other rules that affect all Part 22 Public Mobile Services.

2.  We initiate this proceeding as a part of our year 2000 Biennial
    Review of regulations pursuant to Section 11 of the Communications
    Act of 1934, as amended (Communications Act).[^1] Section 11
    requires us to review all of our regulations applicable to providers
    of telecommunications service, and to determine whether any rule is
    no longer in the public interest as a result of meaningful economic
    competition between providers of telecommunications service and
    whether such regulations should be deleted or modified.

3.  Pursuant to that statutory standard, the Commission staff has
    recently completed a report on its comprehensive review of
    regulations that affect telecommunications service providers, and
    the Commission has issued a report endorsing recommendations made by
    staff as a result of that review.[^2] In the staff report, the staff
    notes that many of the Part 22 rules regulating cellular telephone
    service date back to the inception of the service in the early
    1980s, when the two cellular carriers in each market were the only
    providers of mobile telephony, thus creating a "duopoly" market for
    this service. The staff report recommends initiating a rulemaking to
    review the cellular rules and consider which of these rules are
    obsolete as a result of the technological advances and growth of
    competition that have occurred in mobile telephony since the rules
    were adopted. The report also recommends review of certain other
    Part 22 rules on the same basis.[^3]

4.  In the *Biennial Review Report*, we agreed with the staff's
    recommendation that pursuant to Section 11, we should initiate a
    rulemaking proceeding to identify and address potentially outdated
    technical rules governing cellular service.[^4] Therefore, in this
    *Notice*, we seek comment on whether to modify or eliminate the
    following rules:

-   General cellular service requirements and limitations
    (Section 22.901).

-   The Advanced Mobile Phone Service (AMPS) analog cellular
    compatibility standard (Sections 22.901 and 22.933).

-   Manufacturing design requirements governing the security of
    electronic serial numbers (ESNs) in cellular telephones
    (Section 22.919).

-   Cellular channelization rules (Section 22.905).

-   Cellular analog modulation requirements and out-of-band emission
    limitations (Sections 22.915 and 22.917). We also propose greater
    flexibility in our out-of-band emission rules for broadband Personal
    Communications Services (PCS).

-   Cellular wave polarization requirement (Section 22.367(a)(4)).

-   Rule governing cellular System Identification Numbers (SIDs)
    (Section 22.941)

-   Alternative methods for determining a Cellular Geographic Service
    Area (CGSA) (Section 22.911).

-   Service commencement and construction periods (Section 22.946).

5.  We seek comment on potential modification or elimination of certain
    other Part 22 rules that apply both to cellular and to other CMRS.
    Specifically, we propose to modify or eliminate Section 22.323,
    which imposes conditions on the provision of "incidental" services
    by Public Mobile Services providers.[^5] In connection with our
    review of the incidental services rule, we also consider whether our
    rules should be amended to facilitate more flexible use of spectrum
    licensed to CMRS providers. In particular, we address the
    possibility of Paging and Radiotelephone Service licensees using
    assigned paging channels to transmit audio programming of interest
    to a narrow or specialized audience.

6.  We also seek comment on our proposal to eliminate or modify certain
    cellular anti-trafficking rules, specifically Sections 22.937,
    22.943, and 22.945. We propose to eliminate or modify these rules
    intended to prevent speculation, lottery abuse, and trafficking in
    licenses, as they were adopted during a period when the Commission
    resolved mutually exclusive applications for initial cellular
    services through lottery, rather than the current system of
    resolving such mutually exclusive applications through competitive
    bidding.

#  BACKGROUND

7.  The Commission's Part 22 rules regulating cellular telephone service
    were largely adopted in the early 1980s when the service was
    initiated.[^6] At the time these rules were adopted, the two
    prospective cellular carriers in each market (one of which would be
    affiliated with the incumbent LEC in each market) were anticipated
    to be the only facilities-based providers of mobile telephony, thus
    creating a duopoly market for this service.[^7] One of our earliest
    goals for the cellular service was that of nationwide technological
    compatibility of equipment, so that mobile telephone subscribers to
    a cellular system in one part of the country would be able to use
    their existing terminal equipment while "roaming" \-- *i.e.*, using
    a different cellular system in another part of the country.[^8] To
    ensure technical uniformity in the deployment of cellular service,
    the Commission adopted detailed technical requirements for the
    provision of analog cellular service. Mandated technical standards
    also facilitated competition by eliminating the need for cellular
    mobile telephone users to acquire a different type of terminal
    equipment in order to switch between the two competing carriers in
    their home market area.[^9]

8.  In addition to setting forth technical requirements for analog
    cellular service, the Commission also regulated the provision of
    "incidental" services by cellular and other Part 22 service
    providers.[^10] The incidental services rule allowed Part 22
    licensees to provide "incidental" telecommunications services other
    than the primary service for which they were licensed, but only if
    such services were directly related to that primary service. If the
    primary service were mobile telephone service, for example, such
    incidental services could include telephone answering, alerting,
    dialing, and directory assistance. In addition, the rule prohibited
    cross-subsidization of the incidental service, thereby protecting
    primary service subscribers from impaired service or higher costs.

9.  In addition, those initial cellular licenses not granted to
    incumbent LECs were awarded primarily by lottery, which caused the
    Commission to adopt regulations to prevent speculation and
    trafficking in licenses. The cellular anti-trafficking rules, which
    include Sections 22.937, 22.943 and 22.945, require an applicant for
    a new cellular system to make a demonstration of financial
    qualification at the time of application filing, limit certain
    assignments and transfers of cellular authorizations, and prohibit
    parties from having any direct or indirect interest in more than one
    application for authority to operate a new cellular system in the
    same cellular market. These rules were adopted during a period when
    the Commission resolved mutually exclusive applications through
    lottery. Since that time, however, the Commission has ceased to use
    lotteries and now resolves mutually exclusive applications for
    initial cellular licenses through competitive bidding.

# DISCUSSION

10. Most of our existing rules for cellular service have now been in
    force for nearly two decades. During that time, however, the
    technologies used by carriers to provide cellular service have
    changed radically. Newer technology has allowed cellular service
    providers to increase the capacity of their systems; to offer better
    quality service, advanced calling features, enhanced reliability and
    privacy; and to compete increasingly with the wireline telephone
    network. In addition, PCS and Specialized Mobile Radio (SMR)
    providers have entered the mobile telephony market, significantly
    changing the competitive landscape. We have also replaced the
    lottery process with licensing by auction.

11. We have taken some steps to accommodate these developments. In
    general, we have allowed the introduction of new digital cellular
    system technologies through rule making or waiver proceedings that
    have established exceptions to our original cellular technical
    rules.[^11] Moreover, unlike our approach to analog cellular
    technology, we did not promulgate detailed technical standards for
    digital cellular telephones.[^12] Similarly, we have not imposed
    technical standards on PCS and SMR systems. In those more recent
    proceedings, however, we have not re-examined our original cellular
    rules to determine whether they remain relevant and appropriate in
    light of advancing technology and current competitive conditions. As
    a result, our cellular service rules currently regulate the earliest
    form of cellular more closely than the more complex and advanced
    digital services that have followed.

12. It is time to re-examine our original cellular service rules, as
    well as certain other Part 22 rules that date back to the "cellular
    duopoly" era. As discussed in greater detail below, we tentatively
    conclude that many of these rules are no longer necessary, and that
    some of them may in fact be counterproductive. Therefore, we
    initiate this proceeding to review these rules and consider which of
    them should be eliminated or modified as a result of competitive or
    technological developments. We note that while we focus our inquiry
    in this NPRM on specific rules, we also invite comment on whether we
    should modify any additional provisions of our Part 22 rules.

## General Cellular Rules: Cellular Service Requirements and Limitations

13. Section 22.901 of the Commission's rules, entitled "Service
    requirements and limitations," sets forth various general cellular
    service requirements. Though the rule has been amended several times
    since its initial adoption, it appears to remain outdated in several
    respects. First, the rule is drafted as though the principal
    technology used for cellular service is analog technology;[^13]
    digital technology, clearly the state-of-the-art technology in use
    today, is not referred to explicitly in the rule and falls within
    the rule's classification of "alternative technologies."[^14] As a
    result, we tentatively conclude that the rule should be revised to
    avoid characterization of particular technologies as primary or
    alternative.[^15] Specifically, we propose deleting the current
    Section 22.901(d), which addresses alternative cellular
    technologies, and adding the following language to the introductory
    paragraph of the rule: "In providing cellular services, each
    cellular system may incorporate any technology that meets all
    applicable technical requirements in this part."[^16] We seek
    comment on this proposed change.

14. Second, Section 22.901(a) of the rule currently requires that
    cellular licensees provide subscribers with information regarding
    the service area of the cellular provider.[^17] This requirement is
    not placed on other providers of CMRS services, including, in
    particular, PCS service providers. Even so, these other providers
    typically give customers service-area-related information. We seek
    comment on whether there is any material difference between the
    service-area-related information provided by cellular providers in
    comparison with other providers of CMRS services. We also seek
    comment on whether, in light of the current level of competition in
    the provision of CMRS services, such a requirement is still
    necessary to ensure that consumers have access to
    service-area-related information.

15. Third, currently Section 22.901(b) requires the cellular licensee to
    notify the Commission in the event that a subscriber's request for
    service is denied due to lack of cellular system capacity.[^18] We
    note first that the rule as currently drafted does not provide any
    mechanism for ameliorating any instance of a lack of system
    capacity. Moreover, given the current level of competition,
    consumers who are denied service by a particular provider due to
    lack of capacity will be very likely to have other service options.
    Thus, it appears that this rule may impose a regulatory reporting
    burden on cellular service providers without countervailing
    benefits. Therefore, we seek comment on deleting Section 22.901(b).

16. Fourth, the first sentence of the introductory paragraph in Section
    22.901 of the Commission's rules provides as follows: "Cellular
    system licensees must provide cellular mobile radiotelephone service
    upon request to all cellular subscribers in *good standing* . . .
    ."[^19] We propose deleting this language. We note that no
    comparable requirements are placed on other CMRS services. Moreover,
    cellular service providers will continue to be required to comply
    with Sections 201 and 202 of Title II of the Act, which apply to all
    common carriers.[^20] Those sections require cellular carriers, like
    all common carriers, to provide service on reasonable request, to
    have charges, practices, classifications, and regulations that are
    just and reasonable, and to avoid unjust or unreasonable
    discrimination in their charges, practices, classifications,
    regulations, facilities, or services. We seek comment on this
    proposed change.

17. Fifth, the existing introductory paragraph to Section 22.901
    provides that a cellular system may terminate service when a
    subscriber "operates a cellular telephone in an airborne
    aircraft."[^21] We propose to delete this specific reference because
    it appears to be both unnecessary and potentially confusing, to the
    extent that it could be read to imply that a cellular provider would
    not have the right to terminate service unless our rules provided
    such right explicitly and also because, by addressing only one
    ground for service termination, it could imply that a cellular
    provider would not be able to terminate service for other violations
    of Commission rules.[^22] The Commission has previously made clear
    that a Part 22 provider may refuse or terminate service in the event
    that a subscriber operates a telephone in violation of the
    Commission's rules.[^23] Thus, an express rule allowing a cellular
    provider to refuse or terminate service is unnecessary. Indeed,
    there is no equivalent rule for either PCS or SMR service. We note
    that deleting this termination provision of Section 22.901 would in
    no way affect or change any otherwise applicable rights or
    obligations of a cellular licensee. We therefore seek comment on
    this proposal. Alternatively, if commenters believe that an express
    termination rule is necessary, we seek comment on whether the
    existing provision, which addresses only unlawful operation of a
    cellular telephone in an aircraft, should be broadened to allow
    service termination for violation of any Commission rule. That is, a
    cellular system licensee may terminate service when a subscriber or
    other customer "operates a cellular telephone in violation of *any*
    applicable rule . . . ."

## Cellular Technical Rules

### Analog Cellular Compatibility Standard

18. [Background.]{.underline} When the Commission established cellular
    service in 1981, it required all cellular carriers to design their
    systems in compliance with the then-existing industry compatibility
    standard for analog systems, commonly known as Advanced Mobile Phone
    Service (AMPS). The then-existing AMPS specifications were
    referenced and incorporated in the April 1981 version of Office of
    Engineering and Technology Bulletin No. 53 (OET 53). OET 53, which
    is still in effect, contains specifications for technical
    operational parameters and detailed descriptions of call processing
    algorithms and protocols to be used by analog cellular systems.[^24]

19. Originally, all cellular carriers were required to provide service
    exclusively in accordance with the technical specifications of
    OET 53. Cellular carriers were not allowed to provide analog service
    that did not comply with OET 53, or to provide mobile voice services
    using any other technology. In addition to restrictions regarding
    the type of technology that they could utilize, cellular carriers
    were significantly limited in the breadth of services that they
    could offer. For example, cellular carriers were not allowed to
    provide non-mobile voice services, including fixed wireless and
    paging services. As cellular technology and the competitive market
    evolved, however, the Commission allowed cellular carriers
    flexibility to utilize alternative technologies and provide new
    types of services. In 1988, the Commission adopted the so-called
    "cellular flexibility" rule, which allowed cellular carriers to
    utilize alternative technological platforms for cellular service,
    provided that they continued to provide compatibility with AMPS, as
    defined in OET 53, to their analog customer base.[^25] This enabled
    cellular carriers to begin offering digital service to their
    customers as an alternative to analog service.[^26] In 1996, the
    Commission adopted the *CMRS Flex First Report and Order*, which
    allowed all CMRS providers, including cellular, to offer fixed
    service on a co-primary basis with mobile service, thus increasing
    the breadth of services CMRS carriers could provide.[^27]

20. Although cellular carriers have considerably more flexibility now
    than when the service was established, many of the original rules
    relating to analog service still apply to cellular service. As noted
    above, Section 22.901 currently requires a cellular carrier to
    provide service to any subscriber in good standing within the
    carrier's Cellular Geographic Service Area (CGSA), including any
    analog subscribers.[^28] This rule applies to both in-market
    customers and roaming customers that are using technically
    compatible equipment.[^29] The current Section 22.901(d) further
    provides that a cellular carrier who provides mobile service must
    make it available to subscribers whose mobile equipment conforms to
    the analog compatibility standard referenced in OET 53. This
    effectively requires the carrier to continue to provide AMPS-type
    analog service so long as the carrier continues to have analog
    customers or roamers on its system.[^30] Furthermore, Section 22.933
    provides that the technical requirements for analog service continue
    to be governed by the OET 53 standard in effect since 1981.[^31]

21. We have taken a less regulatory approach to technological
    compatibility in services established since cellular. When we
    established PCS, we decided that each PCS licensee would be allowed
    to determine what type of service to provide.[^32] In accordance
    with this flexible use policy, we did not adopt any rules that
    impose technical standards for PCS, as we had previously done in
    cellular, but permitted licensees to implement technologies of their
    own choice.[^33] Thus far, most broadband PCS licensees have chosen
    to establish cellular-like public mobile telephone services that
    compete directly with cellular service. As could be anticipated,
    some of these new broadband PCS services are technically
    incompatible with other PCS systems. Yet, even in the absence of
    Commission rules requiring technological compatibility, most
    broadband PCS carriers are establishing systems that offer
    nationwide service.[^34] They have done so by building nationwide
    systems (*i.e.*, voluntarily using compatible technology), by making
    roaming arrangements with other carriers that are using compatible
    technology, or by providing dual and triple mode telephones (*i.e.,*
    terminals capable of operating on two or more technically dissimilar
    systems).[^35]

22. Similarly, international industry standards groups of the
    International Telecommunications Union recently adopted a flexible
    standard for a third generation (3G) of mobile telephone technology,
    known as "IMT-2000," that will promote global interoperability.[^36]
    Also on the drawing board are "software-defined radios," which are
    terminal units that can be simply reprogrammed to operate with many
    current and future modulation schemes and call processing
    algorithms. These developments highlight the trend away from
    single-technology compatibility standards and towards technological
    solutions that seek other ways to provide compatibility while
    embracing multiple technologies.

23. [Discussion.]{.underline} In light of these factors, we seek comment
    on whether we should modify or eliminate the rules governing the
    provision of analog service by cellular systems pursuant to
    particular technological specifications. The AMPS standard that is
    referenced and incorporated in OET 53 may well have helped in the
    early years of cellular to facilitate competition between the two
    competing cellular carriers in any given area. Today, however, the
    competitive market for mobile telephone service often includes not
    only the two cellular carriers but several PCS and SMR providers as
    well, who are not subject to any Commission-mandated technological
    standards. As a result, a panoply of mobile telephone technologies
    and services are now available or under development. At the same
    time, although many subscribers are benefiting from the increased
    availability of a wide variety of mobile services, we note that some
    subscribers may not have readily available and accessible economic
    or technological alternatives to analog for mobile services.
    Accordingly, we are mindful that the Commission must consider the
    ramifications of eliminating the analog compatibility standard for
    these subscribers. In this context, we wish to reexamine whether the
    Commission's analog service compatibility requirement remains
    necessary or useful to facilitate competition or to ensure the
    availability of valuable service to all consumers. If we decide to
    retain some form of analog compatibility requirement, we further
    seek comment on how the requirement should be modified to reflect
    changes in technology and in the relevant industry standard.

24. We seek comment on whether the proliferation of competitive mobile
    telephone services suggests that market forces may now provide a
    sufficient incentive for cellular providers to utilize compatible
    and/or interoperable technologies to meet consumer demand for
    nationwide operating capability. As noted above, PCS and other CMRS
    licensees offer service that is compatible nationwide, and many
    consumers need and have come to expect this capability,
    notwithstanding the absence of Commission-mandated technical
    specifications in those services. In addition, the declining cost to
    the subscriber of terminal equipment, and discounts offered by many
    carriers to new subscribers on such equipment, appear to have
    reduced the disincentive for consumers to switch between providers,
    even when the existing equipment must be abandoned because the
    systems use incompatible technologies. Additionally, some providers
    offer dual or triple-mode mobile telephones that allow the customer
    to obtain roaming service from other providers who use different
    technologies. Thus, most customers have an array of options to
    obtain a mobile telephone service with nationwide interoperability
    if that is what they need, or to select a perhaps more economical
    offering providing regional coverage, if that option better
    satisfies their requirements. We seek comment on whether retaining
    the cellular analog compatibility standard remains necessary or
    useful to promote nationwide interoperability in light of these
    trends.

25. We also seek comment on whether eliminating the mandatory analog
    compatibility standard could provide public interest benefits by
    making it easier for cellular carriers to migrate to digital
    technologies. Specifically, we seek comment on the extent of any
    spectral efficiencies that could be gained. For example, would
    eliminating the analog service requirement effectively free up
    additional spectrum, or is so little of the spectrum being used for
    analog services that eliminating this requirement would have little
    impact? To what extent is digital service more spectrum efficient
    than analog service?

26. We also seek comment on whether eliminating this rule would have any
    impact on the continued provision of service to existing analog
    cellular customers. In 1999, there were approximately 41.9 million
    analog subscribers nationwide.[^37] This figure represents a drop
    from the previous year's figure of 44.1 million analog cellular
    subscribers.[^38] In the *Fifth CMRS Competition Report*, we noted
    that the overall number of analog cellular subscribers is on a
    downward trend, as new subscribers increasingly choose digital
    service over analog, and some cellular carriers seek to migrate
    current analog subscribers to digital. Nonetheless, in light of the
    significant remaining base of analog customers, we seek comment on
    whether eliminating this rule would have deleterious effects on
    subscribers. If so, should we consider alternatives to outright
    elimination, such as phasing out the requirement over time?

27. We are also interested in whether deleting the requirement to
    provide analog service would have any significant consequences for
    rural consumers, given that they are more likely to subscribe to
    analog cellular service than other types of consumers.[^39] More
    specifically, we seek comment on the likely treatment by the
    competitive market of these consumers when they roam.[^40] The
    Commission is currently considering whether it should modify the
    rules that relate to roaming and, in particular, whether it should
    mandate automatic roaming.[^41] We seek comment on the relationship
    between potential elimination of the analog service compatibility
    requirement and our roaming rules, particularly with respect to
    effects on rural consumers.

28. In the same vein, we seek comment on whether Commission-mandated
    technological compatibility is more critical for regional, or
    smaller, cellular carriers than for nationwide carriers. We note
    that nationwide carriers by definition maintain a national footprint
    for their services, which may obviate the need for technological
    compatibility while roaming. We seek comment on the effect
    eliminating the mandatory analog compatibility standard may have on
    regional carriers, particularly in the roaming context.

29. We also seek comment on the possible impact of eliminating this rule
    on certain existing programs and services. We note that some
    charitable organizations collect previously used cellular telephones
    so that they may in turn be given to the elderly or others
    exclusively for 911 purposes. Many of these telephones use analog
    technology. Would changing our current rules affect these charitable
    programs? Also, we are aware that there are existing applications
    that employ analog technology that will continue to be necessary.
    For example, General Motors' "OnStar" automobile assistance system
    uses analog cellular technology.[^42] We seek comment on how our
    proposed changes will affect OnStar and other existing analog
    services, and the people who use such services.

30. In particular, we seek comment on the potential effect of
    eliminating the analog service requirement on people with hearing
    disabilities. We note that TTY users must use analog technology
    because digital wireless systems are not currently compatible with
    TTYs, although digital TTYs are under development.[^43] In addition,
    we are aware that digital technologies are, for the most part, not
    currently compatible with hearing aid technologies.[^44] We will not
    take any action that would undermine service to persons with
    disabilities. We note that Section 255 of the Communications Act
    requires that "\[a\] provider of telecommunications service shall
    ensure that the service is accessible to and usable by individuals
    with disabilities, if readily achievable."[^45] Were we to delete
    the requirement that cellular carriers provide analog service, this
    section would still require TTY and hearing aid compatibility, as
    well as other accessibility features to be incorporated into
    cellular systems, where readily achievable. We seek comment on
    whether deleting the analog service requirement would present
    accessibility problems for people with disabilities, or whether the
    independent requirements of Section 255 would sufficiently address
    any such problems.

31. As discussed above, we seek to ensure that eliminating the analog
    compatibility standard does not adversely affect existing analog
    subscribers, or groups that are particularly dependent on access to
    analog-based cellular technology. We are therefore reluctant to
    eliminate this requirement if doing so will significantly impair the
    access of these users to wireless telecommunications services. If we
    ultimately decide to retain some form of analog compatibility
    standard for cellular service, either on a transitional or a
    long-term basis, we must address the fact that the version of the
    AMPS standard that is referenced and incorporated in our rules is
    seriously out of date. As discussed above, OET 53, which was issued
    by OET in 1981, incorporates the then-current AMPS standard, and, as
    a result, reflects the state of the art in cellular technology as it
    was in the late 1970s. We note that since that time, the AMPS
    standard has been extensively revised by the Telecommunications
    Industry Association (TIA) to incorporate advances in technology,
    changes in algorithms, new features, and anti-fraud
    countermeasures.[^46] However, we have never included any of these
    TIA revisions in our rules. Moreover, OET 53 is outdated in several
    other respects as well, because it incorporates references to
    sections of Part 15 and Part 22 of the Commission's rules that have
    been recodified or removed.[^47] We therefore seek comment, if we do
    not eliminate the analog service requirement in its entirety, on
    whether and how we should update our rules.

### Electronic Serial Number Rule

32. [Background]{.underline}. Section 22.919 of the Commission's rules
    sets forth Electronic Serial Number (ESN)[^48] design requirements
    for manufacturers of cellular telephones.[^49] More specifically,
    that section imposes the following requirements. First, each
    cellular mobile telephone must have a unique factory-set ESN that is
    not alterable, transferable, removable or otherwise able to be
    manipulated. Second, each cellular telephone must be designed such
    that any attempt to remove or tamper with the ESN or its related
    components will render the transmitter inoperative. Finally, certain
    physical design and firmware programming requirements must be
    satisfied. Section 22.919 does not apply to PCS or SMR telephones,
    and there are no similar rules applicable to those services in Part
    24 (PCS) or Part 90 (SMR).

33. [Discussion]{.underline}. We seek comments on whether Section 22.919
    continues to be necessary in light of developments since the rule
    was adopted. The sole purpose of the ESN rule was to address the
    problem of cellular "cloning" fraud[^50] that was prevalent in the
    early 1990s. Codifying into the Code of Federal Regulations the
    "hardened ESN"[^51] design specification in OET 53 was said by
    cellular industry fraud control experts to be helpful in building a
    successful legal case when prosecuting fraud perpetrators. Since
    that time, however, Congress has enacted the Wireless Telephone
    Protection Act of 1998, which addresses the unauthorized use of
    access codes for the purpose of fraudulently obtaining
    telecommunications services.[^52] Furthermore, the cellular industry
    developed new encryption technology to eliminate most cloning fraud
    by the use of a second, more secure, access protocol generally known
    as "authentication," in which the key to use authorization is never
    transmitted over the airwaves and thus is not susceptible of being
    intercepted by third parties. Other anti-fraud systems and
    countermeasures include "radio frequency fingerprinting," which
    measures the exact parameters of the authorized phone to forestall
    unauthorized use with other, unauthorized equipment, and "call
    profiling," in which use is monitored for unusual, sudden changes in
    calling patterns.

34. Because the "hardened ESN" provisions of Section 22.919 require that
    the ESN host component not be transferable or removable, they by
    definition preclude the use of "smart card" subscriber identity
    modules in AMPS-compatible cellular telephones and thus complicate
    the possible use of such modules in multiple-mode telephones for
    which one of the modes is AMPS. Smart card subscriber identity
    modules are postage stamp sized cards containing an embedded
    electronic chip that is programmed with the subscriber's
    identification, billing and preference information. Smart cards are
    largely tamper-proof and are widely used throughout the world in
    Global Mobile System (GSM) mobile telephone systems. A subscriber
    can remove his or her smart card from one mobile telephone and
    insert it into another, making it easy to change from one system to
    another. One of the main reasons for employing smart card technology
    is that the subscriber's identity and preferences can be secure from
    theft or disclosure, yet are easily transferable from one telephone
    instrument to another. Some parties believe that smart cards now
    provide better protection from fraudulent tampering than do hardened
    ESN components.[^53]

35. As a general policy, we prefer to allow market forces to determine
    technical standards wherever possible, and thus we do not adopt
    rules mandating detailed hardware design requirements for
    telecommunications equipment, except where doing so is necessary to
    achieve a specific public interest goal. Although mandating design
    requirements is sometimes necessary to ensure interoperability or
    compatibility or to provide a degree of certainty for manufacturers
    and consumers in cases where the market has failed to settle on a
    standard, doing so also entails a risk of freezing technological
    development and discouraging further innovation. In light of this
    principle and the changed circumstances we have outlined above, we
    need to consider whether Section 22.919 should be retained.

36. We tentatively conclude that the original reasons for establishing
    the hardened ESN design requirements in our rules are no longer
    compelling in light of changes in federal law and the widespread
    deployment of advanced fraud control technologies. Furthermore,
    there is some evidence that the hardened ESN requirements may
    actually be counterproductive by deterring the incorporation of
    smart-card technology in AMPS-compatible telephones. We also believe
    it is significant that no similar requirement applies to PCS or SMR
    service. Accordingly, we propose to remove Section 22.919 from our
    rules, and we request comment generally on this proposal. We also
    seek comment as to whether it is still necessary or helpful to have
    a Commission rule addressing wireless fraud and, if so, whether it
    would be desirable to add such a rule to Part 20 (where it would be
    applicable to all CMRS, not just the Cellular Radiotelephone
    Service) stating explicitly that tampering with telecommunications
    equipment in order to obtain unauthorized access to
    telecommunications services is prohibited by federal law.

### Channelization Requirements

37. [Background]{.underline}. Section 22.905 identifies the part of the
    electromagnetic spectrum that is allocated to the Cellular
    Radiotelephone Service and divides it into two blocks, labeled A
    and B. It also sets forth a channelization plan that divides each
    block into 416 paired 30 kHz channels and designates 21 of these
    paired channels in each block as control channels.[^54] This
    channelization plan is the basic scheme for the original compatible
    analog cellular technology. Alternative technologies, including the
    two principal digital technologies that many cellular licensees have
    deployed, are exempt from this channelization plan rule.[^55]

38. [Discussion]{.underline}. We tentatively conclude that it is
    unnecessary to retain in our rules the channelization plan used by
    the original analog cellular technology. Because the older analog
    technology to which the channelization plan applies is well
    established nationwide, removing the plan from the rules would not
    pose any risk of decreased cellular technical compatibility. As we
    stated above, market forces alone should be sufficient to cause CMRS
    carriers to continue to deploy systems that provide nationwide
    operating capability. Accordingly, we propose to amend
    Section 22.905 by removing the channelization plan and to reword the
    remainder of that section such that it specifies only which portions
    of the electromagnetic spectrum are allocated to the Cellular
    Radiotelephone Service and what frequency ranges within that
    allocation make up the two initial blocks (A and B). We further
    propose to remove the phrase "the channeling requirements of Section
    22.905" from Section 22.901(d)(2), as those requirements would no
    longer exist. We seek comment on these proposals.

### Modulation Requirements and In-band Emissions Limitations

39. [Background]{.underline}. Section 22.915 of our rules requires that
    cellular systems be capable of providing service using the
    modulation types described in the OET 53 analog compatibility
    specification. Section 22.915 also provides technical specifications
    for (1) the performance of audio filter and deviation limiter
    circuitry in analog cellular telephones and (2) adjustment of the
    modulation levels in analog cellular telephones. Section 22.917 of
    our rules prescribes emission masks limiting both in-band and
    out-of-band radio frequency emissions.[^56] Paragraph (a) of
    Section 22.917 provides that analog modulated emissions may be
    transmitted only on the communication channels (channels other than
    the control channels identified in the channelization plan discussed
    in the preceding section of this notice). As with the channelization
    rule, alternative technologies, including the two principal digital
    technologies that many cellular licensees use, are exempted from
    these two rules, with the exception of out-of-band emission
    limits.[^57]

40. [Discussion]{.underline}. In developing the rules governing PCS and
    other similar services that are licensed by spectrum blocks, we
    determined that it is not necessary to select a particular
    technology to be used or to specify in our rules the technical
    details, such as modulation parameters, of any particular
    technology. Instead, we have allowed licensees considerable
    flexibility to choose any technology that enables them to operate
    efficiently, by adopting only minimal rules limiting out-of-band
    radio frequency emissions.

41. Therefore, consistent with our policy concerning PCS and other
    similar services and our proposal *supra* to eliminate the OET 53
    analog cellular compatibility specification, we propose to remove,
    in the introductory paragraph of Section 22.915, the requirement
    that cellular systems have the capability to provide service using
    the modulation types described in OET 53. We also propose to remove
    all rules governing audio filter and deviation limiter performance,
    modulation levels, and in-band radio frequency emission limits.
    Because we are proposing to remove the channelization requirements,
    including the designation of control and communication channels, we
    also propose to remove the rule requiring that analog emissions be
    transmitted only on the communication channels.

42. We do not propose to remove the out-of-band emission limit contained
    in Section 22.917, but we invite comment as to how this out-of-band
    limit should be defined in our rules in order to effectively provide
    an adequate measure of interference protection to other licensees
    and services, while allowing licensees the flexibility to establish
    a different limit where appropriate. In particular, should licensees
    be allowed to operate transmitters on frequencies closer to the edge
    of their authorized spectrum than full compliance with our
    out-of-band emission limits would normally permit, provided that all
    of the potentially affected parties (*i.e.*, adjacent spectrum
    licensees) contractually agree to the practice?[^58] Our Wireless
    Communications Service (WCS) rules provide this type of
    flexibility.[^59] We believe that cellular and broadband PCS
    licensees would benefit from the same flexibility. Accordingly, we
    propose to harmonize the wording and provisions of out-of-band
    emission limit rules applicable to the Cellular Radiotelephone
    Service and broadband PCS with those applicable to WCS.[^60]
    Finally, in recent proceedings where services have been established
    with flexible technology and channelization, the Commission has
    adopted detailed requirements governing measurement and equipment
    settings and procedures to be used in certifying transmitting
    equipment for use in those services pursuant to Part 2, Subpart J of
    our rules.[^61] We seek comment as to whether similarly detailed
    rules will be necessary if we adopt more flexible emission limit
    rules for the cellular service and PCS, or whether a more general
    rule is adequate.[^62] We seek comment on these closely related
    issues.

### Wave Polarization Requirement

43. [Background]{.underline}. Section 22.367(a)(4) of the Commission's
    rules provides that electromagnetic waves radiated by base, mobile,
    and auxiliary test transmitters in the Cellular Radiotelephone
    Service must be vertically polarized. In addition to its role in
    promoting technical compatibility, this rule was intended to reduce
    the likelihood of interference from cellular transmitters to
    broadcast television (TV) reception on the upper UHF TV
    channels.[^63]

44. On September 25, 1998, Andrew Corporation (Andrew) filed a petition
    for rulemaking requesting that we amend Section 22.367 to eliminate
    the requirement that cellular base stations radiate only vertically
    polarized radio waves.[^64] The Wireless Telecommunications Bureau
    (WTB) denied this petition, stating that, although it appeared that
    the petition may have had some merit, the public interest would be
    better served by considering this matter along with other potential
    Part 22 rule amendments in connection with the year 2000 Biennial
    Review.[^65]

45. In its petition, Andrew argued that adoption of the proposed rule
    change would make the use of polarization diversity antenna
    arrays[^66] for base stations in the cellular service more
    economical and result in smaller antenna arrays, by eliminating the
    need for either a third component antenna or additional associated
    equipment.[^67] Andrew noted that the Commission had reallocated the
    adjacent TV Channels 60‑69 for land mobile use and questioned
    whether the wave polarization rule is effective in protecting
    television reception in any event. Additionally, Andrew asserted
    that the scattering environment in which today's small portable
    cellular telephones operate tends to de-polarize their signals to
    such an extent that maintaining the same wave polarization for all
    cellular base stations typically provides no interoperability
    benefit. In view of these changed circumstances, Andrew argued, the
    vertical wave polarization rule does not serve or is no longer
    needed to serve the purposes for which it was adopted.[^68]

46. In comments supporting the Andrew Petition, AirTouch Communications,
    Inc. (AirTouch) noted that PCS and SMR operators are not subject to
    a wave polarization rule. In light of the Commission's commitment to
    regulatory symmetry, AirTouch argued, cellular operators should no
    longer be subject to the wave polarization requirement either.[^69]
    GTE Service Corporation (GTE), in its comments, agreed that vertical
    polarization is not needed to reduce the probability of
    interference. GTE also suggested that eliminating the wave
    polarization requirement could reduce carrier antenna costs, allow
    efficient use of antenna sites, foster more aesthetically pleasing
    antenna sites, and promote regulatory parity.[^70]

47. [Discussion]{.underline}. We find that the reasons given by Andrew
    to modify the wave polarization rule appear to be persuasive, and we
    tentatively conclude that we should relax this portion of the rule
    with regard to all cellular stations.[^71] Accordingly we propose to
    amend Section 22.367 of our rules to provide that cellular stations
    are not limited as to wave polarization.[^72] We invite additional
    comments on this proposal. We seek comment as to what, if any,
    interference or other adverse effects might be caused to any fixed
    or mobile telecommunications or broadcast services operating in the
    cellular service spectrum or adjacent spectrum, which currently use
    horizontal wave polarization and rely on compliance with Section
    22.367 to provide cross-polarization isolation.

### Assignment of System Identification Numbers

48. [Background]{.underline}. Section 22.941 of the Commission's rules
    sets forth the procedure by which the Commission assigns system
    identification numbers (SIDs) to systems in the Cellular
    Radiotelephone Service. SIDs are used by cellular systems to
    identify the home system of a cellular telephone and by cellular
    telephones to determine their roaming status.[^73] SIDs are also
    used by cellular systems as part of the mobile identification
    process for billing purposes. SIDs are treated by the Commission as
    a term of the cellular system license. They are first assigned to
    cellular systems by the Commission during initial application
    processing[^74] and they may be altered subsequently as a minor
    modification of station license, by notification to the
    Commission.[^75] There are no Commission rules requiring or
    providing for the assignment of system identification numbers for
    PCS, SMR or any other CMRS.

49. The Commission began assigning cellular SIDs in the early 1980s at
    the request of the Electronics Industry Association (EIA). Even
    though SIDs were made a term of cellular licenses, the Commission
    accepted no-fee informal (letter) applications to modify SID
    assignments throughout the 1980s. Under that system, a licensee had
    to wait until the Commission approved its SID modification request
    and issued a replacement license bearing the change before using the
    modified SID. In 1994, the Commission adopted the SID assignment
    rules now used, under which cellular licensees may begin using other
    SIDs (subject to consent of any affected licensees) without first
    seeking and obtaining Commission approval, but are required to
    notify the Commission of SID modifications after the fact.[^76]

50. [Discussion]{.underline}. We believe that it is unnecessary to
    retain our current cellular SID rules. The assignment of cellular
    SIDs is not required by statute, and there is no public policy
    reason that SIDs must be a term of Cellular Radiotelephone Service
    authorizations.[^77] When we proposed the current SID rules in 1992,
    we also sought comment on the possibility of a private sector entity
    coordinating the use of SIDs outside of the Commission licensing
    process.[^78] Unfortunately, no such entity came forward at that
    time, and so the Commission adopted the proposed rules and has
    continued to assign cellular SIDs and accept notifications of SID
    changes. Recently however, the Cellular Telecommunications and
    Internet Association suggested, in comments about the Commission's
    Year 2000 Biennial Review Report, that the Commission should turn
    the function of coordinating Cellular Radiotelephone Service SIDs
    over to its subsidiary CIBERNET, which already performs this
    function for PCS.

51. We propose to no longer include SIDs as a term of cellular licenses
    and to amend Section 22.941 of our rules to remove the notification
    requirement. We plan to retain the requirement that a cellular
    system may transmit another system's SID only if that system
    consents to such use. We seek comment on these proposals, and we
    again invite proposals under which SID coordination functions would
    be carried out by an industry organization such as CIBERNET, rather
    than by the Commission.[^79]

### Determination of Cellular Geographic Service Area

52. Section 22.911(a) of our rules sets forth a standardized method for
    determining the CGSA of a cellular system.[^80] The standard method
    uses a general mathematical formula to calculate distances along the
    cardinal radials[^81] to the service area boundary (SAB) of each
    cell in the system.[^82]

53. Paragraph (b) of Section 22.911 provides, however, that any cellular
    licensee may apply for a modification of its licensed CGSA if it
    believes that the standard method produces a CGSA that is
    substantially different from the actual coverage of its system. When
    preparing to file an application requesting such a modification, the
    licensee must employ alternative methods (actual measurements, more
    accurate prediction models or a combination of the two) to determine
    the location of the median 32 dBμV/m field strength contour and the
    distances along cardinal radials to that contour. In describing how
    these distances to the median 32 dBμV/m contours must be used to
    determine the CGSA, paragraphs (b)(1) and (b)(3) of Section 22.911
    use the term SAB in several places. In our experience, this
    occasionally leads licensees erroneously to believe that they may
    employ the alternative methods to determine an SAB, as opposed to
    the CGSA, and then to use that erroneously-determined SAB in
    connection with various other rules that govern SAB extensions
    (Section 22.912, for example) or the traffic capture protection rule
    (Section 22.911(d)(2)).

54. We wish to clarify that the SAB of a cell and the 32 dBμV/m contour
    that is used when preparing an alternative CGSA determination are
    not the same. The SAB is the boundary calculated using the
    mathematical formulas and methods set forth in paragraph (a) of
    Section 22.911, regardless of the actual median field strength along
    this boundary (as measured or predicted with more elaborate
    methodology). On the other hand, the 32 dBμV/m contour is the locus
    of points where the predicted or measured median field strength
    finally drops to 32 dBμV/m, regardless of how far these points may
    actually be from the cell site. We are proposing, therefore, to
    reword portions of paragraphs (b)(1) and (b)(3) of Section 22.911 to
    eliminate use of the term SAB in those paragraphs and thereby
    eliminate the confusion that sometimes arises.

### Service Commencement and Construction Periods

55. Section 22.946 of the Commission's rules, entitled "Service
    commencement and construction periods for cellular systems," sets
    forth timing requirements relating to the deployment of new cellular
    systems. This section was amended in the Commission's Universal
    Licensing System proceeding.[^83] There was an apparent oversight in
    the ULS proceeding and, as a result, the table referred to in this
    section, entitled "Commencement of Service," was inadvertently
    deleted when this rule was amended. Because channel blocks have been
    authorized in all of the top 90 cellular markets, one of the three
    entries in the table, which referred to the construction
    requirements for the first cellular system authorized in each
    channel block in these markets, is obsolete. Thus, we use this
    opportunity to propose amending Section 22.946 to reflect the
    correct and updated information. We also use this opportunity to
    propose deleting the final phrase of Section 22.946(b), which
    prohibits cellular system licensees from "intentionally serv\[ing\]
    only roamer stations."[^84] Historically, this prohibition was
    necessary because cellular markets were duopolistic and, as a
    result, if one of the two carriers served only roamers, then there
    would be no competition for cellular service to subscribers. In the
    currently competitive market for cellular services, we believe that
    this prohibition is no longer needed. We seek comment on these
    proposed changes.

## Incidental Services Rule

56. [Background]{.underline}. Section 22.323 of the Commission's
    rules[^85] authorizes carriers operating in the Public Mobile Radio
    Services to provide other communications services incidental to the
    primary public mobile service, provided certain conditions are met.
    In general, Section 22.323 requires carriers providing incidental
    services to protect mobile subscribers by ensuring that: (1) the
    costs and charges of subscribers not wishing to use incidental
    services are not increased as a result of the carrier's provision of
    incidental services to other subscribers; (2) the quality and
    availability of primary public mobile service does not materially
    deteriorate; and (3) provision of such incidental services is not
    inconsistent with the Communications Act of 1934 or the Commission's
    rules and policies.

57. In 1996, in the *CMRS Flex First Report and Order*, we found that
    many CMRS carriers were seeking to provide a wide range of fixed
    wireless service offerings to customers and that carriers proposed
    to combine fixed and mobile technologies into integrated service
    packages.[^86] We found it in the public interest to afford carriers
    greater flexibility in providing innovative wireless services to
    meet customer demands, stimulate wireless competition in the local
    exchange markets and encourage further innovation and
    experimentation in the development of wireless services.
    Accordingly, we amended our rules to allow CMRS carriers to provide
    fixed wireless services on a co-primary basis with commercial mobile
    services.[^87] We did not, however, amend or modify Section 22.323
    as it applies to incidental services offered by Part 22 licensees.

58. In the *CMRS Flex Second Report and Order* adopted in July 2000, we
    further amended our rules to clarify that fixed wireless services
    provided pursuant to Section 22.901(d) of the Commission's
    rules[^88] are not subject to the incidental services restrictions
    set forth in Section 22.323 of the Commission's rules.[^89] At the
    same time, we also eliminated the Section 22.323 condition that
    licensees notify the Commission prior to providing incidental
    services.[^90] Additionally*,* we indicated that the continuing need
    for Section 22.323 would be revisited as part of the biennial review
    of all regulations that apply to providers of telecommunications
    service.[^91]

59. In February, 2000, the WTB addressed a petition for rulemaking filed
    by FreePage Corporation (FreePage), which requested that we amend
    Section 22.323 to permit paging licensees to use their assigned
    channels to transmit audio programming of interest to a narrow or
    specialized audience. Possible services cited by FreePage included,
    without limitation, children's programming, foreign language
    programming, and reading services for persons who have sight
    disabilities. FreePage referred to this proposed service as Limited
    Program Distribution Service (LPDS). By Public Notice, the WTB
    requested comments on whether Section 22.323 should be amended to
    include the LPDS service proposed by FreePage as an "incidental
    service" and on whether any other Commission rules should be amended
    to permit more flexible use of spectrum licensed to CMRS
    providers.[^92] Four parties, including FreePage, filed
    comments.[^93]

60. [Discussion]{.underline}. Having recently removed the prior notice
    requirement, we tentatively conclude that the three remaining
    conditions in Section 22.323 also are no longer necessary.
    Section 22.323(a) imposes the condition that the costs and charges
    to subscribers not wishing to receive incidental services may not be
    increased as a result of the provision of incidental services to
    other subscribers. Because of the competitive wireless environment,
    however, CMRS licensees are not subject to federal rate regulation
    and are not permitted to file tariffs with the Commission. Under
    these circumstances, we tentatively conclude that this rate
    restriction is unnecessary, as any dissatisfied subscriber will have
    the option of switching to a competing carrier. In addition, the
    meaning of the restriction in a deregulated, detariffed environment
    is unclear. For the same reasons, we tentatively conclude that the
    Section 22.323(b) condition regarding the quality and availability
    of the primary public mobile service is no longer necessary. We also
    tentatively conclude that it is unnecessary to expressly remind
    carriers in this rule of their obligation to comply with applicable
    provisions of the Act and of our rules and policies. Accordingly, we
    propose to delete all three of the remaining conditions in
    Section 22.323, and we seek comment on these proposed deletions.

61. As to the remaining portion of Section 22.323, we recognize that the
    rule simply may no longer be necessary in the current wireless
    marketplace, for various reasons. In particular, we have permitted
    CMRS carriers substantial flexibility to provide a wide variety of
    service offerings, and we have made clear that carriers offering
    co-primary fixed service pursuant to Section 22.901(d) and the *CMRS
    Flex First Report and Order* are not subject to the requirements of
    Section 22.323. On the other hand, some carriers have argued that
    express provision for incidental services is helpful in
    demonstrating to state commissions that certain services must be
    treated as CMRS exempt from state and local regulation of rates and
    entry,[^94] and GTE has argued that Section 22.323 remains necessary
    as applied to air-ground service.[^95] In light of these
    considerations, we seek comment on whether the authorization of
    incidental services under Section 22.323 of our rules remains
    necessary as applied to some or all Part 22 services.

62. As part of our consideration of modifying or eliminating
    Section 22.323, we also seek comment on FreePage's request that
    Section 22.323 be amended to include the LPDS service proposed by
    FreePage as an "incidental service." We invite comments on whether
    spectrum assigned to CMRS licensees could be used for the LPDS
    service proposed by FreePage. In particular, we would be interested
    in comments addressing whether the service proposed by FreePage is
    in fact a broadcast service, and, therefore, whether we would need
    to change existing spectrum allocation and service rules to permit
    LPDS service in spectrum assigned to CMRS licensees. More generally,
    we also request comments on what effects, if any
    ([e]{.underline}.[g]{.underline}., interference, service preclusion,
    or redundancy of service offerings), the implementation of
    FreePage's LPDS proposal would have on other authorized service
    offerings or services proposed in pending Commission rulemaking
    proceedings. Finally, we are particularly interested in receiving
    comments from members of the disability community regarding how they
    might benefit from a revision of the Commission's rules that would
    permit use of the spectrum for programming to narrow or specialized
    audiences.[^96]

## Cellular Anti-Trafficking Rules

63. [Background]{.underline}. Sections 22.937,[^97] 22.943,[^98] and
    22.945[^99] of the Commission's rules were originally adopted under
    former rule sections to prevent speculation and trafficking in
    cellular licenses, which were primarily awarded by lottery after
    1984.[^100] Section 22.937 currently requires an applicant for a new
    cellular system to make a demonstration of financial qualification,
    at the time of application filing, that it has a separate
    market--specific firm financial commitment or available financial
    resources to construct and operate a cellular system for one year.
    The required demonstration must include an assessment of estimated
    costs, source of financing, a lender's statement or certain
    financial statements in cases of personal or internal financing.
    Section 22.937 was originally adopted in 1981 as former
    Section 22.917.[^101] In adopting former Section 22.917, the
    Commission stated that "cellular applicants must demonstrate that
    they are financially qualified to construct their proposed facility
    and to operate it for a reasonable period of time. Such a
    demonstration is necessary because of the large capital investment
    required to finance the highly sophisticated technology associated
    with cellular operations and because cellular service is in an early
    stage of development and must be viewed as a relatively high-cost
    business venture."[^102]

64. Section 22.943[^103] sets forth limitations on assignments and
    transfers of cellular authorizations and provides that such
    assignments or transfers are subject to anti-trafficking provisions
    of former Section 22.139, with certain exceptions.[^104] The
    Commission's anti-trafficking rules generally prohibit acquiring an
    authorization for the principal purpose of speculation or profit
    resale. The cellular anti-trafficking rules specifically permit the
    transfer of cellular licenses awarded by lottery after construction.
    This policy was intended to balance the public interest in efficient
    use of the spectrum through free transferability of licenses with a
    deterrent for insincere applicants to speculate in unbuilt
    facilities.[^105]

65. Section 22.945 governs interests in applicants with mutually
    exclusive applications for a new cellular system and, with limited
    exceptions, prohibits parties from having any direct or indirect
    interest in more than one application for authority to operate a new
    cellular system in the same cellular market.[^106] Section 22.945
    was originally adopted as former Section 22.921 in 1984,[^107] and
    was intended to prevent abuses of the lottery process by prohibiting
    the filing of multiple applications in the same market by those with
    either a majority interest in an entity or a minority interest which
    may in fact be a controlling interest in the applicant. The
    Commission recognized that "\[d\]etermining whether a minority share
    owner has the power to exercise control, either positive or
    negative, is very difficult and time-consuming."[^108] By precluding
    participation in more than one application per market in cellular
    lotteries, the Commission could avoid "numerous protracted
    challenges to selectees and litigation of that difficult issue after
    holding lotteries."[^109]

66. [Discussion]{.underline}. We propose to eliminate or substantially
    modify Sections 22.937, 22.943, and 22.945 because these rules were
    adopted primarily during a period when mutually exclusive
    applications for initial licenses not granted to incumbent LECs were
    resolved by lottery.[^110] As the Commission is now required to
    resolve mutually exclusive applications for initial cellular
    licenses through competitive bidding, rather than lottery, certain
    sections of these rules are outdated and no longer serve the public
    interest. We therefore seek comment on the proposals discussed
    below.

67. Section 22.937 of the Commission's rules was adopted at the
    inception of the cellular radiotelephone service to ensure that
    proposed cellular carriers had the financial ability to construct
    and operate a viable cellular system in the licensed market. The
    financial demonstration is no longer necessary as the cellular
    radiotelephone service has existed for almost twenty years and there
    are two authorized cellular carriers in all MSAs and virtually all
    RSAs. In addition, our rules have been amended to permit interested
    parties to file applications for any areas not served by cellular
    carriers after the expiration of the applicable five-year build-out
    period, and such applications are subject to competitive bidding. We
    therefore propose to eliminate the financial demonstration
    requirement set forth in Section 22.937 in all cases, except
    comparative renewal proceedings. We seek comment on this proposal.

68. Section 22.943 imposes anti-trafficking limitations on cellular
    licensees seeking to assign or transfer their authorizations. This
    rule was adopted in the lottery era and, as noted, mutually
    exclusive applications for initial cellular authorizations are
    currently resolved through competitive bidding. Other wireless
    services, which are also required to resolve mutually exclusive
    applications through competitive bidding, are not subject to
    service-specific rules to prohibit license trafficking or (except in
    the case of PCS entrepreneur blocks) to specific holding periods
    prior to assignment or transfer of licenses acquired through
    competitive bidding. We therefore propose to eliminate Section
    22.943 to the extent it prohibits trafficking in cellular licenses
    and prohibits unserved area licensees from assigning or transferring
    an authorization until the system has provided service to
    subscribers for at least one year. The service-specific
    anti-trafficking rule set forth in Section 22.943 appears to be
    unnecessary and duplicative, as former Section 22.139, which is
    referenced in Section 22.943, has been revised and consolidated into
    Part 1 of our rules applicable to all wireless services.[^111]

69. Notwithstanding our proposal to eliminate Sections 22.937 and
    22.943, we do not propose to revise or eliminate rules pertaining to
    cellular comparative renewal proceedings, with the possible
    exception of Section 22.943(c). Although the Commission is required
    to resolve mutually exclusive applications for initial cellular
    licenses through competitive bidding, competing applications filed
    against an existing cellular licensee's renewal application may need
    to be resolved through a comparative renewal proceeding pursuant to
    Section 22.935 of the Commission's rules.[^112] A comparative
    hearing is held among all qualified mutually exclusive applicants if
    the existing licensee fails to make a showing entitling it to a
    renewal expectancy, which would require the competing applications
    to be denied.[^113] As a result, we propose to retain the financial
    demonstration requirement only as it relates to cellular renewal
    proceedings, specifically Section 22.937(g),[^114] which provides
    that initial cellular applicants competing against a cellular
    renewal application must make an appropriate financial
    demonstration. In this limited context, the financial status of a
    cellular applicant may be an important element in a comparative
    hearing proceeding. We also seek comment on whether we should retain
    Section 22.943(c), which provides that the Commission does not
    accept applications for consent to assign or transfer a cellular
    authorization acquired by a current licensee for the first time as a
    result of a comparative renewal proceeding until the system has
    provided service to subscribers for at least three years.[^115] We
    seek comment generally on these proposals.

70. Section 22.945, which prohibits parties from having any direct or
    indirect interest in more than one application for authority to
    operate a new cellular system in the same cellular market, was
    adopted solely to prevent lottery system abuses. We believe the rule
    is therefore obsolete for the current cellular radiotelephone
    service, where lotteries are no longer permitted and competitive
    bidding is required to be implemented to resolve mutually exclusive
    applications. For example, an applicant filing more than one
    application for a specific unserved area under our current rules
    would have no advantage over other applicants seeking an
    authorization for the same geographic area; all mutually exclusive
    applicants would be resolved through competitive bidding rather than
    lottery. We note that we are not addressing in this proceeding the
    requirements of Section 22.942,[^116]which prohibits the same or
    affiliated parties from having certain interests in cellular
    licenses for both channel blocks in overlapping cellular geographic
    service areas ("cellular cross-ownership rule"). We are examining
    that rule in a separate biennial review proceeding.[^117]

#  ADMINISTRATIVE MATTERS

## Initial Regulatory Flexibility Act

71. The Initial Regulatory Flexibility Analysis is attached to this
    *Notice* as Appendix B.

## Paperwork Reduction Act 

72. This *Notice* also proposes to eliminate existing information
    collections. As part of our continuing effort to reduce paperwork
    burdens, we invite the public and the Office of Management and
    Budget (OMB) to take this opportunity to comment on the reduction of
    information collection burden, as required by the Paperwork
    Reduction Act of 1995, Public Law 104-13. Public and agency comments
    are due at the same time as other comments on this *Notice*; OMB
    comments are due 60 days from date of publication of this *Notice*
    in the Federal Register. Comments should address: (a) whether the
    proposed collection of information is necessary for the proper
    performance of the functions of the Commission, including whether
    the information shall have practical utility; (b) the accuracy of
    the Commission\'s burden estimates; (c) ways to enhance the quality,
    utility, and clarity of the information collected; and (d) ways to
    minimize the burden of the collection of information on the
    respondents, including the use of automated collection techniques or
    other forms of information technology.

## *Ex Parte* Rules

73. This proceeding will be treated as a \"permit‑but‑disclose\"
    proceeding subject to the \"permit‑but‑disclose\" requirements under
    Section 1.1206(b) of the Commission's rules.[^118] *Ex parte*
    presentations are permissible if disclosed in accordance with
    Commission rules, except during the Sunshine Agenda period when
    presentations, *ex parte* or otherwise, are generally prohibited.
    Persons making oral *ex parte* presentations are reminded that a
    memorandum summarizing a presentation must contain a summary of the
    substance of the presentation and not merely a listing of the
    subjects discussed. More than a one- or two-sentence description of
    the views and arguments presented is generally required.[^119]
    Additional rules pertaining to oral and written presentations are
    set forth in Section 1.1206(b).

## Filing of Comments and Reply Comments

74. Pursuant to applicable procedures set forth in Sections 1.415 and
    1.419 of the Commission\'s Rules, 47 C.F.R. §§ 1.415 and 1.419,
    interested parties may file comments in response to this *Notice* on
    or before July 2, 2001 and reply comments on or before August
    1, 2001. Comments may be filed using the Commission\'s Electronic
    Comment Filing System (\"ECFS\") or by filing paper copies.[^120]
    Comments filed through the ECFS can be sent via the Internet to:
    \<http://www.fcc/e-file/ecfs.html\>. Generally, only one copy of an
    electronic submission must be filed. If multiple docket or
    rulemaking numbers appear in the caption of this proceeding,
    however, commenters must transmit one electronic copy of the
    comments to each docket or rulemaking number referenced in the
    caption. In completing the transmittal screen, commenters should
    include their full name, postal service mailing address, and the
    applicable docket or rulemaking number. Parties may also submit an
    electronic comment by Internet e-mail. To get filing instructions
    for e-mail comments, commenters should send an e-mail to
    ecfs@fcc.gov, and should include the following words in the body of
    the message, \"get form\<your e-mail address\>.\" A sample form and
    directions will be sent in reply.

75. Parties who choose to file by paper must file an original and four
    copies of each filing. If participants want each Commissioner to
    receive a personal copy of their comments, an original plus nine
    copies must be filed. If more than one docket or rulemaking number
    appears in the caption of this proceeding commenters must submit two
    additional copies for each additional docket or rulemaking number.
    All filings must be sent to the Commission\'s Secretary, Magalie
    Roman Salas, Office of the Secretary, Federal Communications
    Commission, 445 12th Street, S.W., Washington, D.C. 20554. The WTB
    contact for this proceeding is Lauren M. Van Wazer.

76. Written comments by the public on the proposed and/or modified
    information collections are due July 2, 2001. Written comments must
    be submitted by the Office of Management and Budget (OMB) on the
    proposed and/or modified information collections on or before 60
    days after date of publication in the Federal Register. In addition
    to filing comments with the Secretary, a copy of any comments on the
    information collection burden reduction(s) contained herein should
    be submitted to Judy Boley, Federal Communications Commission, Room
    1-C804, 445 12th Street, SW, Washington, DC 20554, or via the
    Internet to [jboley@fcc.gov]{.underline} and to Virginia Huth, OMB
    Desk Officer, 10236 NEOB, 725 - 17th Street, N.W., Washington, DC
    20503, or via the Internet to <vhuth@omb.eop.gov>.

#  ORDERING CLAUSES

77. Accordingly, **IT IS ORDERED** that, pursuant to Sections 4(i), 11,
    and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 161 and 303(r), respectively, NOTICE **IS HEREBY GIVEN**
    of the proposals described in this Notice of Proposed Rulemaking.

78. **IT IS FURTHER ORDERED** that the Commission's Consumer Information
    Bureau, Reference Information Center, shall send a copy of this
    Notice of Proposed Rulemaking, including the Initial Regulatory
    Flexibility Analysis and Final Regulatory Flexibility Certification
    regarding broadband PCS, to the Chief Counsel for Advocacy of the
    Small Business Administration.

> **Federal Communications Commission**

Magalie Roman Salas

Secretary

**APPENDIX A**

# PROPOSED RULE CHANGES {#proposed-rule-changes .unnumbered}

I.  Title 47, part 22 of the Code of Federal Regulations,
    47 CFR part 22, is amended as follows:

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1.  The authority citation for part 22 continues to read as follows:

[Authority]{.smallcaps}: 47 U.S.C. 154, 222, 303, 309 and 332.

2.  Section 22.323 is amended by revising it in its entirety to read as
    follows:

-   22.323 Incidental communication services.

Carriers authorized to operate stations in the Public Mobile Services
may use these stations to provide other telecommunications services
incidental to the primary public mobile service(s) for which the
authorizations were issued.

3.  Section 22.367 is amended by removing and reserving paragraph (a)(4)
    and by revising paragraph (d), to read as follows:

-   22.367 Wave polarization.

\* \* \* \* \*

\(a\) \* \* \*

\(4\) \[Reserved\]

\* \* \* \* \*

\(d\) *Any polarization.* Base, mobile and auxiliary test transmitters
in the Cellular Radiotelephone Service are not limited as to wave
polarization. Public Mobile Service stations transmitting on channels
higher than 960 MHz are not limited as to wave polarization.

4.  Section 22.377 is amended by removing paragraph (c).

5.  Section 22.901 is amended to read as follows:

-   22.901 Cellular service requirements and limitations.

The licensee of each cellular system is responsible for ensuring that
its cellular system operates in compliance with this section. Each
cellular system must provide either mobile service, fixed service, or a
combination of mobile and fixed service, *subject to* the requirements,
limitations and exceptions in this section. Mobile service provided may
be of any type, including two‑way radiotelephone, dispatch, one‑way or
two‑way paging, and personal communications services (as defined in
Part 24 of this chapter). Fixed service is considered to be primary
service, as is mobile service. When both mobile and fixed service are
provided, they are considered to be co‑primary services. In providing
cellular services, each cellular system may incorporate any technology
that meets all applicable technical requirements in this part.

Section 22.905 is revised to read as follows:

-   22.905 Frequency bands.

The following frequency bands are allocated for assignment to service
providers in the Cellular Radiotelephone Service.

\(a\) Channel Block A: 869 -- 880 MHz paired with 824 -- 835 MHz, and
890 -- 891.5 MHz paired with 845 -- 846.5 MHz.

\(b\) Channel Block B: 880 -- 890 MHz paired with 835 -- 845 MHz, and
891.5 -- 894 MHz paired with 846.5 -- 849 MHz

6.  Section 22.911 is amended by revising paragraphs (b)(1) and (b)(3),
    to read as follows:

-   22.911 Cellular geographic service area.

\* \* \* \* \*

\(b\) \* \* \*

\(1\) The alternative CGSA determination must define the CGSA in terms
of distances from the cell sites to the 32 dBμV/m contour along the
eight cardinal radials, with points in other azimuthal directions
determined by the method given in paragraph (a)(6) of this section. \*
\* \*

\* \* \* \* \*

\(3\) The provision for alternative CGSA determinations was made in
recognition that the formula in paragraph (a)(1) of this section is a
general model that provides a reasonable approximation of coverage in
most land areas, but may substantially under-predict or over-predict
coverage in specific areas with unusual terrain roughness or features,
and may be inapplicable for certain purposes, *e.g.*, cells with a
coverage radius of less than 8 kilometers (5 miles). \* \* \*

\* \* \* \* \*

7.  Section 22.915 is removed.

8.  Section 22.917 is revised to read as follows:

-   22.917 Emission limitations for cellular equipment.

The rules in this section govern the spectral characteristics of
emissions in the Cellular Radiotelephone Service.

\(a\) *Out of band emissions*. The power of any emission outside of the
authorized operating frequency ranges must be attenuated below the
transmitting power (P) by a factor of at least 43 + 10 log(P) dB.

\(b\) *Measurement procedure.* Compliance with the limitation in
paragraph (a) is based on the use of measurement instrumentation
employing a resolution bandwidth of 1 MHz or more. However, for
measurements within 1 MHz of the center of the main emission bandwidth,
a resolution bandwidth of not less than 1% of the main emission
bandwidth may be employed. For the purpose of this section, the main
emission bandwidth is the continuous width of the signal outside of
which all emissions are attenuated by at least 26 dB below the
transmitting power. Either peak or average measurements may be used,
provided that both the emissions and the reference transmitter power are
measured the same way. When measuring emissions, the transmitter must be
set to operate as close to each of the upper and lower channel block
edges as the design permits for normal operation.

\(c\) *Alternative out of band emission limit*. Licensees in this
service may establish an alternative out of band emission limit to be
used at specified band edge(s) in specified geographical areas, in lieu
of that set forth in this section, pursuant to a private contractual
arrangement of all affected licensees and applicants. In this event,
each party to such contract shall maintain a copy of the contract in
their station files and disclose it to prospective assignees or
transferees and, upon request, to the FCC.

\(d\) *Interference caused by out of band emissions.* If any emission
from a transmitter operating in this service results in interference to
users of another radio service, the FCC may require a greater
attenuation of that emission than specified in this section.

9.  Section 22.919 is removed.

10. Section 22.921 is amended to read as follows:

-   22.921 911 call processing procedures; 911-only calling mode.

Mobile telephones manufactured after February 13, 2000 that are capable
of operating in the analog mode described in the standard publication
ANSI TIA/EIA‑553‑A‑99 "Mobile Station -- Base Station Compatibility
Standard" (published November 1, 1999 - available for purchase from
Global Engineering Documents, 15 Inverness East, Englewood, CO 80112),
must incorporate a special procedure for processing 911 calls. Such
procedure must recognize when a 911 call is made and, at such time, must
override any programming in the mobile unit that determines the handling
of a non-911 call and permit the call to be transmitted through the
analog systems of other carriers. This special procedure must
incorporate one or more of the 911 call system selection processes
endorsed or approved by the FCC.

11. *See* Section III.B.1, *supra*, for discussion relating to Section
    22.933.

12. Section 22.937 is amended by revising it to read as follows:

-   22.937 Demonstration of financial qualifications in cellular renewal
    proceedings.

Each applicant for a new cellular system whose application is competing
with a cellular renewal application must demonstrate that it has, at the
time the application is filed, either a firm financial commitment, an
irrevocable letter of credit or a performance bond in the amount of its
realistic and prudent estimated costs of construction and any other
expenses to be incurred during the first year of operating its proposed
system (the irrevocable letter of credit or performance bond must be
from the type of financial institution described in paragraph (b) of
this section), or available resources, as defined in paragraph (c) of
this section, necessary to construct and operate its proposed cellular
system for one year.

\(a\) The firm financial commitment may be contingent on the applicant
obtaining an authorization. The applicant must also list all of its
realistic and prudent estimated costs of construction and any other
expenses to be incurred during the first year of operating its proposed
system.

\(b\) The firm financial commitment required above shall be obtained
from a state or federally chartered bank or savings and loan
association, another recognized financial institution, or the financial
arm of a capital equipment supplier; shall specify the terms of the loan
or other form of credit arrangement, including the amount to be
borrowed, the interest to be paid, the amount of the commitment fee and
the fact that it has been paid, the terms of repayment and any
collateral required; and shall contain a statement:

\(1\) That the lender has examined the financial conditions of the
applicant, including audited financial statements where applicable, and
has determined that the applicant is creditworthy;

\(2\) That the lender has examined the financial viability of the
proposal for which the applicant intends to use the commitment;

\(3\) That the lender is committed to providing a sum certain to the
particular applicant;

\(4\) That the lender\'s willingness to enter into the commitment is
based solely on its relationship with the applicant; and,

\(5\) That the commitment is not in any way guaranteed by an entity
other than the applicant.

\(c\) An applicant intending to rely on personal or internal resources
must submit:

\(1\) Audited financial statements certified within one year of the date
of the cellular application, indicating the availability of sufficient
net current assets to construct and operate the proposed cellular system
for one year;

\(2\) A balance sheet current within 60 days of the date of filing its
application that clearly shows the continued availability of sufficient
net current assets to construct and operate the proposed cellular system
for one year; and,

\(3\) A certification by the applicant or an officer of the applicant
organization attesting to the validity of the unaudited balance sheet.

\(d\) Applicants intending to rely upon financing obtained through a
parent corporation must submit the information required by paragraph (c)
of this section, as the information pertains to the parent corporation.

\(e\) As an alternative to relying upon a firm financial commitment, an
irrevocable letter of credit, or a performance bond from a financial
institution as described in paragraph (b) of this section, an applicant
may state that it has placed in an escrow account sufficient cash to
meet its construction and first-year operating expenses. Such a
statement must specify the amount of cash, the escrow account number and
the financial institution where the escrow account is located.

\(f\) Any competing application filed against the renewal application of
an incumbent cellular system licensee that does not demonstrate, at the
time it is initially filed, that the competing applicant has sufficient
funds to construct and operate for one year its proposed cellular system
will be dismissed.

13. Section 22.941 is revised to read as follows:

-   22.941 System identification numbers.

System identification numbers (SIDs) are transmitted by cellular systems
to cellular telephones in their areas. Reception of a SID so transmitted
enables cellular telephones to establish whether they would be in a
"home" or "roamer" status when receiving service from the cellular
system. The SID of a cellular system is also programmed into the
cellular telephones that are subscribed to that system. A cellular
telephone transmits the programmed SID (among other numbers) when
seeking service from a cellular system, enabling that system to
determine whether the telephone is one of its subscribers or a roamer;
and if a roamer, what the home system of that cellular telephone is.
SIDs are also used for various billing purposes.

\(a\) Each cellular system must have at least one SID that is associated
uniquely with it. Cellular system licensees must coordinate the usage of
SIDs to ensure that this requirement is met.

\(b\) Cellular systems may transmit only their SID(s) or the SID(s) of
other cellular systems. A cellular system may transmit the SID(s) of
another cellular system only if the licensee of that system concurs with
such use of its SID.

14. Section 22.943 is amended by revising it to read as follows:

-   22.943 Limitations on transfer of control and assignment for
    authorizations issued as a result of a comparative renewal
    proceeding.

Except as otherwise provided in this section, the FCC does not accept
applications for consent to transfer of control or for assignment of the
authorization of a cellular system that has been acquired by the current
licensee for the first time as a result of a comparative renewal
proceeding until the system has provided service to subscribers for at
least three years.

\(a\) The FCC may accept and grant applications for consent to transfer
of control or for assignment of the authorization of a cellular system
that is to be transferred as a part of a *bona fide* sale of an on-going
business to which the cellular operation is incidental.

\(b\) The FCC may accept and grant applications for consent to transfer
of control or for assignment of the authorization of a cellular system
that is to be transferred as a result of the death of the licensee.

\(c\) The FCC may accept and grant applications for consent to transfer
of control or for assignment of authorization if the transfer or
assignment is *pro forma* and does not involve a change in ownership.

15. Section 22.945 is removed.

16. Section 22.946 is amended by revising it in its entirety to read as
    follows:

-   22.946 Service commencement and construction periods for cellular
    systems.

This section specifies the service commencement and construction
requirements for cellular systems. Related rule provisions and
notification requirements are contained in § 1.946 of this chapter.

\(a\) *Commencement of service*. Each new cellular system licensed in
markets 91-306 must be partially constructed and begin providing service
to subscribers within 18 months. All other cellular systems must be at
least partially constructed and begin providing service to subscribers
within 12 months, beginning on the date of grant of the initial
authorization. The grant of any subsequent authorizations (such as for
major modifications) do not extend this period. To satisfy this
requirement, a cellular system must be interconnected with the public
switched telephone network (PSTN) and must be providing service to
mobile stations operated by its subscribers and roamers. A cellular
system is considered to be providing service only if mobile stations can
originate telephone calls to and receive telephone calls from wireline
telephones through the PSTN.

[Note to paragraph (a) of § 22.946:]{.smallcaps} The *first* cellular
system authorized on each channel block in markets 1 through 90,
inclusive, was allowed 36 months, rather than 12 months, to commence
providing service. The *first* cellular system authorized on each
channel block in markets *other than* markets 1 through 90, inclusive,
was allowed 18 months, rather than 12 months, to commence providing
service. These longer startup periods that were afforded to
first-authorized cellular systems have all elapsed.

\(b\) *Construction period for specific facilities*. The construction
period applicable to specific new or modified cellular facilities for
which a separate authorization is granted is one year, beginning on the
date the authorization is granted.

II. Title 47, part 24 of the Code of Federal Regulations,
    47 CFR part 24, is amended as follows:

```{=html}
<!-- -->
```
1.  The authority citation for part 24 continues to read as follows:

[Authority]{.smallcaps}: 47 U.S.C. 154, 301, 302, 303, 309 and 332.

17. Section 24.238 is revised to read as follows:

-   24.238 Emission limitations for Broadband PCS equipment.

The rules in this section govern the spectral characteristics of
emissions in the Broadband Personal Communications Service.

\(a\) *Out of band emissions*. The power of any emission outside of the
authorized operating frequency ranges must be attenuated below the
transmitting power (P) by a factor of at least 43 + 10 log(P) dB.

\(b\) *Measurement procedure.* Compliance with the limitation in
paragraph (a) is based on the use of measurement instrumentation
employing a resolution bandwidth of 1 MHz or more. However, for
measurements within 1 MHz of the center of the main emission bandwidth,
a resolution bandwidth of not less than 1% of the main emission
bandwidth may be employed. For the purpose of this section, the main
emission bandwidth is the continuous width of the signal outside of
which all emissions are attenuated by at least 26 dB below the
transmitting power. Either peak or average measurements can be used,
provided that both the emissions and the reference transmitter power are
measured the same way. When measuring emissions, the transmitter must be
set to operate as close to each of the upper and lower frequency block
edges as the design permits for normal operation.

\(c\) *Alternative out of band emission limit*. Licensees in this
service may establish an alternative out of band emission limit to be
used at specified band edge(s) in specified geographical areas, in lieu
of that set forth in this section, pursuant to a private contractual
arrangement of all affected licensees and applicants. In this event,
each party to such contract shall maintain a copy of the contract in
their station files and disclose it to prospective assignees or
transferees and, upon request, to the FCC.

\(d\) *Interference caused by out of band emissions.* If any emission
from a transmitter operating in this service results in interference to
users of another radio service, the FCC may require a greater
attenuation of that emission than specified in this section.

APPENDIX B

**INITIAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act (RFA),[^121] the
Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities of
the policies and proposals in this Notice of Proposed Rulemaking (NPRM),
WT Docket No. 01-108. Written public comments are requested on this
IRFA. These comments must be filed in accordance with the same filing
deadlines for comments on the rest of this NPRM, as set forth in Section
IV.C., *supra*, and they must have a separate and distinct heading
designating them as responses to the IRFA. The Commission will send a
copy of this NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA) in accordance with
the RFA.[^122] In addition, the NPRM and IRFA (or summaries thereof)
will be published in the Federal Register.[^123]

## Need for, and Objectives of, the Proposed Rules

As part of our 2000 biennial regulatory review pursuant to Section 11 of
the Communications Act of 1934, as amended (Communications Act), we are
required to review all of our regulations that are applicable to
providers of telecommunications service to determine whether any rule is
no longer in the public interest. More specifically, in the *Biennial
Review Report*, the Commission indicated that it would initiate a
rulemaking proceeding to identify and address potentially outdated
technical rules governing cellular service, based on the staff's
recommendations that were included in the *Biennial* *Review Staff
Report*.[^124] The staff report notes that many of the Part 22 technical
rules regulating cellular telephone service date back to the inception
of the service in the early 1980s and, given the significant
technological changes and growth in competition for cellular services
since that time, the rules may be obsolete. In particular, the *Notice*
seeks comment on elimination of the cellular analog compatibility
standard and the Electronic Serial Number (ESN) rule, as well as
modifying several other technical rules.[^125] In the same vein, some of
the cellular anti-trafficking rules may be outdated because they were
adopted during a period when the Commission resolved mutually exclusive
applications for initial cellular services through lottery, rather than
the current system of resolving such mutually exclusive applications
through competitive bidding.[^126] We also take this opportunity to
reevaluate certain other Part 22 rules that apply both to cellular and
to other CMRS, specifically Section 22.323, which imposes conditions on
the provision of "incidental" services by Public Mobile Services
providers.[^127]

## Certification Regarding Broadband PCS

With regard to broadband Personal Communications Service (PCS), we
certify, pursuant to the RFA, that the proposed changes to Section
24.238, emissions limitations, would not have "a significant economic
impact on a substantial number" of small broadband PCS providers.[^128]
The proposed changes to this rule would reduce the compliance burden on
these entities by allowing these entities greater flexibility to
establish out-of-band emissions limits to be used at specified band
edges.[^129] Specifically, the proposed Section 24.238(c) would allow
parties to establish alternative out-of-band emissions limits pursuant
to private contractual arrangements -- a practice that is not permitted
by the current rule. This proposal would effectively codify and expand
upon a waiver that the Wireless Telecommunications Bureau (Bureau)
granted for all broadband PCS licensees in August 2000.[^130] In that
waiver grant, the Bureau waived Section 24.238 "insofar as it limits
out-of-band emissions on: (1) adjacent contiguous frequency blocks that
are separately assigned to the same PCS licensees, and (2) adjacent
contiguous frequency blocks that are assigned to different PCS licensees
who have entered into an agreement(s) concerning interference protection
to the adjacent spectrum."[^131] The proposed rule change would allow
somewhat more flexibility to licensees because it would not limit a
licensee's ability to contract for alternative emissions limitations to
only those frequency blocks that are both adjacent and contiguous.
Because our proposed change would effectively codify a waiver that
permits greater flexibility for broadband PCS licensees, the proposed
changes to Section 24.238 would not have a significant economic impact
on broadband PCS providers.

## Legal Basis

The potential actions on which comment is sought in this NPRM would be
authorized under Sections 1, 4(i), 11, and 303(r) of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 161, and 303(r).

## Description and Estimate of the Small Entities Subject to the Rules 

The RFA requires that an initial 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 impact on a substantial number of small entities."[^132] The
RFA generally defines the term "small entity" as having the same meaning
as the terms "small business," "small organization," and "small
governmental jurisdiction."[^133] In addition, the term "small business"
has the same meaning as the term "small business concern" under the
Small Business Act.[^134] A small business concern is one which: (1) is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA.[^135] This IRFA describes and estimates the number of small-entity
licensees and manufacturers that may be affected if the proposals in
this NPRM are adopted.

This NPRM could result in rule changes that, if adopted, would affect
small businesses that currently are or may become Cellular
Radiotelephone Service providers that are regulated under Subpart H of
Part 22 of the Commission's rules. In addition, the proposed changes to
Section 22.323 of the Commission's rules would, if adopted, affect
service providers that are regulated under any provisions of Part 22 of
the Commission's rules. These include, in addition to Cellular
Radiotelephone Service providers, providers of Paging and Radiotelephone
(Common Carrier Paging), Air-Ground Radiotelephone, Offshore
Radiotelephone, and Rural Radiotelephone services. In addition, pursuant
to Section 90.493(b) of the Commission's rules, paging licensees on
exclusive channels in the 929-930 MHz bands are subject to the
licensing, construction, and operation rules set forth in Part 22.[^136]
As this rulemaking proceeding applies to multiple services, we will
analyze the number of small entities affected on a service-by-service
basis. In addition to service providers, some of the proposed rule
changes may also affect manufacturers of cellular telecommunications
equipment. We will include a separate discussion regarding the number of
small cellular equipment manufacturing entities that are potentially
affected by the proposed rule changes.

1.  **Cellular Radiotelephone Service**. Neither the Commission nor the
    SBA has developed a definition of small entities applicable to
    cellular licensees. Therefore, the applicable definition of small
    entity is the definition under the SBA rules applicable to
    radiotelephone (wireless) companies. This provides that a small
    entity is a radiotelephone company employing no more than 1,500
    persons.[^137] According to the Bureau of the Census, only twelve
    radiotelephone firms from a total of 1,178 such firms, which
    operated during 1992, had 1,000 or more employees.[^138] Therefore,
    even if all twelve of these firms were cellular telephone companies,
    nearly all cellular carriers were small businesses under the SBA's
    definition. In addition, we note that there are 1,758 cellular
    licenses; however, a cellular licensee may own several licenses. In
    addition, according to the most recent *Telecommunications Industry
    Revenue* data, 808 carriers reported that they were engaged in the
    provision of either cellular service or PCS, which are placed
    together in the data.[^139] We do not have data specifying the
    number of these carriers that are not independently owned and
    operated or have more than 1,500 employees, and thus are unable at
    this time to estimate with greater precision the number of cellular
    service carriers that would qualify as small business concerns under
    the SBA's definition. Consequently, we estimate that there are 808
    or fewer small cellular service carriers that may be affected by
    these proposals, if adopted.

2.  **Paging.** The Commission has adopted, and the SBA has approved, a
    two-tier definition of small businesses in the context of auctioning
    licenses in the paging services. Under this definition, a small
    business is defined as either (1) an entity that, together with its
    affiliates and controlling principals, has average gross revenues
    for the three preceding years of not more than \$3 million, or (2)
    an entity that, together with affiliates and controlling principals,
    has average gross revenues for the three preceding calendar years of
    not more than \$15 million. The Commission has estimated that as of
    January 1998, there were more than 600 paging companies in the
    United States.[^140] We do not have data specifying the number of
    these carriers that are not independently owned and operated or meet
    the small business thresholds set forth above, or the number of
    these carriers that are regulated under Part 22 of the Commission's
    rules, and thus are unable at this time to estimate with precision
    the number of affected paging carriers that would qualify as small
    business concerns under our definition. However, we estimate that
    the majority of existing paging providers qualify as small entities
    under our definition. Consequently, we estimate that there are up to
    approximately 600 currently licensed small paging carriers that may
    be affected by the rule changes proposed in the NPRM. In addition,
    high bids were placed at auction in March 2000 for 985 new
    geographic area paging licenses, and an additional 15,645 geographic
    area paging licenses are expected to be awarded following future
    auctions. In the March 2000 auction, high bids were placed on paging
    licenses by 57 entities that qualify as small businesses under the
    Commission's definition. Licenses have been granted to 56 of these
    entities, and the application of the other entity remains pending.
    Thus, in addition to existing licensees, should the Commission adopt
    the rule changes proposed in the NPRM either 57 or 58 license
    winners in the recent auction would be affected small entities, and
    up to 15,645 winners of paging licenses in future auctions would be
    affected small entities.

3.  **Air-Ground Radiotelephone Service.** The Commission has not
    adopted a definition of small business specific to the Air-Ground
    radiotelephone service.[^141] Accordingly, we use the SBA definition
    applicable to radiotelephone companies, *i.e.*, an entity employing
    no more than 1,500 persons. There are approximately 100 licensees in
    the Air-Ground radiotelephone service, and the Commission estimates
    that almost all of them qualify as small entities under the SBA
    definition.

4.  **Offshore Radiotelephone Service.** This service operates on
    several ultra high frequency (UHF) TV broadcast channels that are
    not used for TV broadcasting in the coastal area of the states
    bordering the Gulf of Mexico. At present, there are approximately 55
    licensees in this service. The Commission has not adopted a
    definition of small business specific to the Offshore Radiotelephone
    Service. Accordingly, we use the SBA definition applicable to
    radiotelephone companies, *i.e*., an entity employing no more than
    1,500 persons. The Commission is unable at this time to estimate the
    number of licensees that would qualify as small entities under the
    SBA definition for radiotelephone communications. The Commission
    assumes, for purposes of this IRFA, that all of the 55 licensees are
    small entities, as that term is defined by the SBA.

5.  **Rural Radiotelephone Service.** The Commission has not adopted a
    definition of small entity specific to the Rural Radiotelephone
    Service.[^142] A significant subset of the Rural Radiotelephone
    Service is the Basic Exchange Telephone Radio Systems (BETRS).[^143]
    We therefore use the SBA definition applicable to radiotelephone
    companies; *i.e.*, an entity employing no more than 1,500 persons.
    There are approximately 1000 licensees in the Rural Radiotelephone
    Service, and the Commission estimates that almost all of them
    qualify as small entities under the SBA definition.

6.  **Cellular Equipment Manufacturers***.* Some of the proposed actions
    in the NPRM will also affect manufacturers of cellular equipment.
    The Commission does not know how many cellular equipment
    manufacturers are in the current market. The 1994 County Business
    Patterns Report of the Bureau of the Census estimates that there are
    920 companies that make communications subscriber equipment. This
    category includes not only cellular equipment manufacturers, but
    television and AM/FM radio manufacturers as well. Thus, the number
    of cellular equipment manufacturers is considerably lower than 920.
    Under SBA regulations, a "communications equipment manufacturer,"
    which includes not only U.S. cellular equipment manufacturers but
    also firms that manufacture radio and television broadcasting and
    other communications equipment, must have a total of 750 or fewer
    employees in order to qualify as a small business concern.[^144]
    Census Bureau data from 1992 indicate that at that time there were
    an estimated 858 such U.S. manufacturers and that 778 (91%) of these
    firms had 750 or fewer employees and would therefore be classified
    as small entities.[^145] Using our current estimate of cellular
    equipment manufacturers and the previous percentage estimate of
    small entities, we estimate that our current action may affect
    approximately 837 small cellular equipment manufacturers.

## Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

This NPRM neither proposes nor anticipates any additional reporting,
recordkeeping or other compliance measures.

## Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.[^146]

As stated earlier, several of the Commission's technical and
anti-trafficking cellular rules may be outdated. Therefore, modifying or
eliminating these rules should decrease the costs associated with
regulatory compliance for cellular service providers, provide additional
flexibility in manufacturing cellular equipment, and also enhance the
market demand for some products. Also, amending or deleting the
incidental services rules may allow licensees in the Part 22 services
greater flexibility in the types of services they offer. In the NPRM,
the Commission has set forth various options it is considering for each
rule, from modifying rules to eliminating them altogether. As discussed
in the NPRM, the effect of any rule change on the regulatory burden of
both licensees and equipment manufacturers will be a significant
criterion in determining appropriate Commission action.

We note that the entire intent underlying our actions here is to lessen
the levels of regulation, consistent with our mandate for undertaking
biennial reviews. We have therefore described, *supra*, various
alternatives to lessen the regulatory burden on carriers and equipment
manufacturers, including small entities. We seek comment on any
additional appropriate alternatives.

##  Federal Rules that May Duplicate, Overlap or Conflict with the Proposed Rules

None.

#   {#section .unnumbered}

# SEPARATE STATEMENT OF {#separate-statement-of .unnumbered}

# COMMISSIONER GLORIA TRISTANI {#commissioner-gloria-tristani .unnumbered}

Re: *Year 2000 Biennial Regulatory Review -- Amendment of Part 22 of the
Commission's Rules to Modify or Eliminate Outdated Rules Affecting the
Cellular Radiotelephone Service and other Commercial Mobile Radio
Services, Notice of Proposed Rulemaking*

As part of our Section 11 biennial review process, this Notice proposes
to modify or eliminate numerous rules that apply to the Cellular
Radiotelephone Service -- the two cellular licenses -- under Part 22 of
the Commission's rules. Many of these rules date back to the inception
of this service in the early 1980s, and it is time we conduct a thorough
review. I have some concerns, however, and write separately to express
my view that the Commission should look hard at consumer interests and,
in particular, the interests of Americans with disabilities, as we
engage in our upcoming debate.

While most of us have access to a full array of exciting wireless
services and innovative applications, millions of Americans with hearing
and speech disabilities are limited to analog-based service offerings.
To date, digital wireless technology is still not compatible with text
telephone (TTY) devices and most hearing aids. Time and again, the
Commission has granted digital technology-based wireless providers
extensions and exemptions from compatibility requirements.[^147] In
reaching these decisions, I have found some level of comfort in the
knowledge that during the interim the disability community has had the
choice of two analog cellular providers in each market. I remain
committed to that choice as long as digital wireless technology remains
inaccessible.

Without question, there are consumer and public interest benefits to
migrating from analog to digital wireless services: higher quality
service offerings, additional service features, and more efficient use
of the spectrum, to name a few. In my judgement, however, the
fundamental ability of all Americans -- including Americans with
disabilities -- to access wireless telecommunications services must be
paramount. It is our moral duty and statutory obligation to ensure
access to the communications revolution[^148]; it *is* the public
interest.

The Notice, nonetheless, seeks comment on elimination of the analog
service requirement. While it notes that the Commission is "reluctant to
eliminate this requirement if doing so will significantly impair the
access of these users to wireless telecommunications services,"[^149] I
would have preferred a tentative conclusion that this agency will not
consider eliminating the requirement until TTY- and hearing
aid-compatible digital equipment is available to the public. The
Commission seeks comment on the rule, however, and so I encourage the
disability community to participate in this rulemaking and educate us
about their experiences -- and frustrations -- with wireless services.
In addition, I hope we will learn the views of the analog customer base
more broadly, particularly those rural customers whose ability to roam
could be affected by elimination of the rule.

On a separate note, this item seeks comment on eliminating the
requirement that cellular licensees "inform prospective subscribers of
the area in which reliable service can be expected."[^150] The item
observes that PCS providers and other CMRS operators are not subject to
this rule, and "these other providers typically give customers
service-area-related information."[^151] At this time, I question
whether meaningful competition makes a rule ensuring the provision of
accurate service area information "no longer necessary in the public
interest."[^152] Indeed, a competitive marketplace could prompt some
providers to take liberties in their marketing practices.[^153] I look
forward to reviewing the record on this matter.

I nonetheless support adoption of this Notice as we examine our rules
pursuant to the Section 11 biennial review process. I hope that the
questions posed here will prompt people with disabilities and other
consumers to participate actively in this proceeding.

[^1]: *See* Section 11 of the Communications Act of 1934, as amended,
    47 U.S.C. § 161.

[^2]: *See* Biennial Regulatory Review, CC Docket No. 00-175, *Report*,
    FCC 00-456 (adopted December 29, 2000; released January 17, 2001)
    (*Biennial Review Report*); Biennial Regulatory Review 2000 Updated
    Staff Report, released January 17, 2001 (*Biennial Review Staff
    Report*).

[^3]: *Biennial Review Staff Report* at ¶ 104.

[^4]: *Biennial Review Report* at ¶ 67.

[^5]: The Commission recently removed one of the conditions in § 22.323,
    which had required licensees to notify the Commission before
    providing incidental services pursuant to that rule. *See* Amendment
    of the Commission's Rules to Permit Flexible Service Offerings in
    the Commercial Mobile Radio Services, FCC 00-246,
    WT Docket No. 96‑6, *Second Report and Order and Order on
    Reconsideration*, 15 FCC Rcd. 14,680 (rel. July 20, 2000) (*CMRS
    Flexibility Second Report and Order and Order on Reconsideration*).

[^6]: *See* 47 C.F.R. § 22.900 *et seq.* The Cellular Radiotelephone
    Service initially was titled the Domestic Public Cellular Radio
    Telecommunications Service. *See* Revision of Part 22 of the
    Commission's Rules Governing the Public Mobile Services,
    CC Docket No. 92‑115, *Report and Order*, 9 FCC Rcd 6513, 6538
    (1994) (changing name) (hereinafter *Part 22 Rewrite*).

[^7]: The Commission initially decided to license only one cellular
    carrier in any given area but later reconsidered and modified its
    initial decision. *See* An Inquiry into the Use of the Bands 825-845
    MHz and 870-890 MHz for Cellular Communications Systems, CC Docket
    No. 79-318, 86 FCC 2d 469, 482 (1981).

[^8]: *See* An Inquiry Relative to the Future Use of the Frequency Band
    806-960 MHz; and Amendment of Parts 2, 18, 21, 73, 74, 89, 91, and
    93 of the Rules Relative to Operations in the Land Mobile Service
    Between 806 and 960 MHz, Docket No. 18262, *Second Report and
    Order*, 46 FCC 2d 752, 801 Appendix C, III(f) (1974); *Memorandum
    Opinion and Order*, 51 FCC 2d 945, 1009 Appendix F, IV(f) (1975);
    *see also* An Inquiry Into the Use of the Bands 825-845 MHz and
    870-890 MHz for Cellular Communications Systems; and Amendment of
    Parts 2 and 22 of the Commission's Rules Relative to Cellular
    Communications Systems, 78 FCC 2d 984, 1002 at ¶¶ 52-63 (1980).

[^9]: Early cellular terminal equipment was very expensive;
    consequently, having to change equipment in order to switch to a
    competing carrier would have been cost-prohibitive. Today, cellular
    telephones are much less expensive, and the equipment cost is often
    subsidized by the carrier.

[^10]: 47 C.F.R. § 22.323.

[^11]: *See* Amendment of Parts 2 and 22 of the Commission's Rules to
    Permit Liberalization of Technology and Auxiliary Service Offerings
    in the Domestic Public Cellular Radio Telecommunications Service,
    GEN. Docket No. 87‑390, *Report and Order*, 3 FCC Rcd 7033 (1988).

[^12]: *Id.* at ¶ 16.

[^13]: Proposed changes in rules referencing the Commission's mandated
    analog technology compatibility standard, Analog Mobile Phone
    Service (AMPS), will be discussed in greater detail *infra* ¶ 19 *et
    seq*.

[^14]: 47 C.F.R. § 22.901(d).

[^15]: While we tentatively conclude that the rule should no longer
    imply that any technology is primary and others are "alternative,"
    we defer judgment, in light of the issues discussed *infra* Section
    III.B.1., as to whether the Commission should retain the analog
    compatibility standard.

[^16]: *See* Appendix A for full text of the rule changes proposed in
    this *Notice*.

[^17]: Section 22.901(a) provides as follows: "*Service area
    information*. Licensees must inform prospective subscribers of the
    area in which reliable service can be expected." 47 C.F.R. §
    22.901(a).

[^18]: Section 22.901(b) provides as follows: "Lack of capacity. If a
    licensee refuses a request for cellular service because of a lack of
    system capacity, it must report that fact to the FCC in writing,
    explaining how it plans to increase capacity." 47 C.F.R. §
    22.901(b).

[^19]: 47 C.F.R. § 22.901 (emphasis added).

[^20]: 47 U.S.C. §§ 201 & 202.

[^21]: 47 C.F.R. § 22.901.

[^22]: We note that language clarifying a carrier's right to deny
    service to a customer who violates Commission rules may have been
    helpful in the context of an express requirement to serve
    subscribers in good standing. As discussed above, however, we are
    proposing to delete this express service requirement.

[^23]: *See* Amendment of Sections of Part 21 (now Part 22) of the
    Commission's Rules to Modify Individual Licensing Procedures in the
    Domestic Public Radio Services (now Public Mobile Radio Services),
    CC Docket No. 79-259, *Report and Order*, 77 F.C.C.2d 84, 86, ¶ 8
    (1980) ("If a subscriber fails to meet any of the responsibilities
    discussed above \[including compliance with the Commission's
    rules\], the carrier may refuse or suspend service until the
    subscriber has corrected the deficiency in question.").

[^24]: *See* An Inquiry Into the Use of the Bands 825‑845 MHz and
    870‑890 MHz for Cellular Communications Systems; and Amendment of
    Parts 2 and 22 of the Commission's Rules Relative to Cellular
    Communications Systems, CC Docket No. 79‑318*, Report and Order,*
    86 FCC 2d 469, 1508 at ¶¶ 92‑93. (1981). The OET 53 specifications
    were largely based on an Electronics Industries Association working
    paper describing technical specifications of the two original
    developmental cellular systems.

[^25]: Amendment of Parts 2 and 22 of the Commission's Rules to Permit
    Liberalization of Technology and Auxiliary Service Offerings in the
    Domestic Public Cellular Radio Telecommunications Service, 3 FCC Rcd
    7033 (1988), *Report and Order*, GEN. Docket No. 87-390 (1988).

[^26]: *Id.* Another type of analog cellular service, Narrowband Analog
    Mobile Phone Service (N-AMPS), is in use in some cellular systems.
    Although not a digital service, N-AMPS is considered an alternative
    technology pursuant to Section 22.901(d) of the Commission's rules,
    and as such it is not subject to the requirements applicable to
    AMPS.

[^27]: *See* Amendment of the Commission's Rules to Permit Flexible
    Service Offerings in the Commercial Mobile Radio Services, WT Docket
    No. 96-6, *First Report and Order and Further Notice of Proposed
    Rulemaking*, 11 FCC Rcd 8965 (1996) (*CMRS Flex First Report and
    Order*).

[^28]:  47 C.F.R. § 22.901.

[^29]: *See* Interconnection and Resale Obligations Pertaining to
    Commercial Mobile Services, CC Docket No. 94-54, *Second Report and
    Order and Third Notice of Proposed Rulemaking*, 11 FCC Rcd 9462
    (1996), *recon.*, FCC 00-251 (rel. Aug. 28, 2000).

[^30]: *See* 47 C.F.R. § 22.901(d). This provision only applies to
    cellular carriers who provide mobile services. Thus, a cellular
    carrier that elected to provide exclusively fixed service, in
    accordance with the *CMRS Flex First Report and Order*, could avoid
    this requirement. As a practical matter, however, no cellular
    carrier has sought to provide fixed service on an exclusive basis.

[^31]: 47 C.F.R. § 22.933.

[^32]: PCS licensees may provide any type of mobile or fixed service,
    excluding a broadcasting service. *See* 47 C.F.R. § 24.3.

[^33]: The Commission does require, however, that systems provide
    service to roaming subscribers in cases in which the technology is
    compatible. *See* 47 C.F.R. § 20.12(c).

[^34]: Some PCS systems even offer roaming on systems in Europe and
    other parts of the world.

[^35]: In the early 1980s, when the cellular technical compatibility
    rules were adopted, dual-mode or multiple-mode mobile telephones
    were thought to be prohibitively expensive.

[^36]: *See* Press Release ITU/99-4, dated March 25, 1999, "ITU approves
    key characteristics for the radio interfaces of third generation
    mobile systems," which may be viewed at the following internet site:

    [http://www.itu.int/newsroom/press/releases/1999/99-04.html](http://www.itu.int/newsroom/press/releases/1999/99-04.htm).
    *See also* Press Release ITU/99-22, dated November 5, 1999,
    "IMT-2000 Radio Interface Specifications Approved in ITU Meeting in
    Helsinki," which may be viewed at the following internet site:
    <http://www.itu.int/newsroom/press/releases/1999/99-22.html>. *See
    generally* ITU Press Release, dated May 8, 2000, "ITU gives final
    approval to IMT-2000 radio interface specifications," which may be
    viewed at the following internet site:

    <http://www.itu.int/newsroom/press/releases/2000/10.html>.

[^37]: *Annual Report and Analysis of Competitive Market Conditions With
    Respect to Commercial Mobile Services*, FCC 00-289, *Fifth Report*,
    15 FCC Rcd. 17,660 (rel. Aug. 18, 2000) (*Fifth Annual CMRS
    Competition Report*).

[^38]: *Id.*

[^39]: *Fifth Annual CMRS Competition Report* at Appendix F, Maps 2-5
    (digital cellular and PCS coverage maps showing rural consumers less
    likely to reside in areas with digital coverage).

[^40]: Roaming "occurs when the subscriber of one CMRS provider utilizes
    the facilities of another CMRS provider with which the subscriber
    has no direct pre-existing services or financial relationship . . .
    ." Automatic and Manual Roaming Obligations Pertaining to Commercial
    Mobile Radio Services, FCC 00-361, WT Docket 00-193, *Notice of
    Proposed Rulemaking*, ¶ 2 (rel. Nov. 1, 2000).

[^41]: *Id*. at ¶ 1.

[^42]: *See*
    [http://www.onstar.com/visitors/html/ao_faq.htm](http://www.onstar.com/about/faq.htm)
    (setting forth General Motors' reasons for employing analog
    technology in its OnStar system).

[^43]: Pursuant to the Commission's E-911 rules, service providers must
    be able to pass TTY calls on wireless systems. Since 1997, the
    Commission has suspended the enforcement of this rule as it applies
    to digital wireless carriers, pending industry's implementation of
    solutions which would allow for compatibility between TTYs and
    digital systems. *See* Revision of the Commission's Rules to Ensure
    Compatibility with Enhanced 911 Emergency Calling Systems, FCC
    00-436, CC Docket 94-102, *Fourth Report and Order*, ¶¶ 27-8 (rel.
    Dec. 14, 2000) (establishing June 30, 2002 as the deadline by which
    digital wireless service providers must transmit 911 calls made with
    TTY devices).

[^44]: *See* Letter from the Wireless Access Coalition to Secretary, FCC
    (dated Oct. 7, 2000) (requesting that the Commission reopen
    proceedings to consider whether to revoke the exemption of digital
    mobile telephones from hearing-aid compatibility requirements).

[^45]: 47 U.S.C. § 255(c).

[^46]: The latest revision by the TIA is contained in the standard
    publication ANSI TIA/EIA‑553‑A‑99 "Mobile Station -- Base Station
    Compatibility Standard" (published November 1, 1999), which is
    available for purchase from Global Engineering Documents,
    15 Inverness East, Englewood, CO 80112.

[^47]: OET issued a July 1983 revision of Bulletin No. 53. However, this
    revision was never incorporated into the Commission's rules.

[^48]: An ESN is a 32 bit binary number that uniquely identifies a
    cellular mobile transmitter to a cellular system.

[^49]: Section 22.919 was adopted in 1994 as a part of the Part 22
    rewrite and was intended to codify and expand upon the ESN
    guidelines given in OET 53. See *Part 22 Rewrite*, 9 FCC Rcd at
    6525.

[^50]: "Cloning" a cellular telephone means intentionally altering the
    internally-stored telephone number (MIN), system identification
    number (SID) and unique factory-set ESN of a cellular telephone so
    as to duplicate the MIN, SID and ESN of another cellular telephone.
    Because the original cellular systems relied solely on these three
    numbers to identify a particular cellular telephone for access and
    billing purposes, cloning a cellular telephone created additional
    telephones that appeared to be the same telephone to these systems.
    By cloning the cellular telephone of a legitimate subscriber, third
    parties could use the cloned cellular telephone to make calls that
    would later be billed to the unsuspecting legitimate subscriber.

[^51]: The term "hardened ESN" refers to the design requirement that the
    ESN be made absolutely unalterable (*i.e.,* physically impossible to
    alter, by any person, for any reason).

[^52]: *See* 18 U.S.C § 1029(a)(7) (2000).

[^53]: *See*
    [http://www.gemplus.com/app/wireless/role/index.htm](http://www.gemplus.fr/basics/why.htm)
    for a leading smart card manufacturer's views on the security
    advantages of smart cards.

[^54]: This channelization plan is referenced in OET 53,
    Section 2.1.1.1, by its former codification, section 22.902 of the
    Commission's rules. The current rule, section 22.905, contains a
    typographical error: in the Block B control channel pairs, last
    line, it should read "835.620" instead of "835.920".

[^55]: *See* 47 C.F.R. § 22.901(d)(2). Of the digital technologies
    commonly used to provide cellular telephone service, the
    time-division multiple access (TDMA) technology uses the same
    spacing and channel center frequencies as are specified in
    section 22.905 for the original analog technology, while the
    code-division multiple access (CDMA) technology uses an entirely
    different channelization plan.

[^56]: Manufacturers of cellular telephone transmission equipment
    conforming to the original analog technology may elect to comply
    with the alternative in-band emission mask set forth in
    paragraph (c) of section 22.917 in lieu of complying with both the
    section 22.915 audio filter design requirements and the matching
    in-band emission mask in paragraph (b) of section 22.917.

[^57]: *See* 47 C.F.R. § 22.901(d)(2).

[^58]: Last year, certain broadband PCS licensees and equipment
    manufacturers asked the Wireless Telecommunications Bureau to
    interpret the broadband PCS emission limit rule as being
    inapplicable in the case where adjacent spectrum is separately
    licensed to the same entity, or a cooperating entity. In response,
    the Bureau granted relief in the form of a waiver. *See* *Omnipoint
    Request for Broadband Declaratory Ruling or Waiver Concerning PCS
    Emission Limits Rule Section 24.238*, DA 00-1767, 15 FCC Rcd 13422
    (2000).

[^59]: *See* 47 C.F.R. § 27.53(a)(10).

[^60]: *See* proposed rules §§ 22.917 and 24.238 in Appendix A.

[^61]: *See, e.g.,* 47 C.F.R. § 27.53(d).

[^62]: *See* proposed rule paragraphs Sections 22.917(b) and 24.238(b)
    in Appendix A.

[^63]: *See Part 22 Rewrite*, 9 FCC Rcd at 6558. We note that
    alternative services are exempt from wave polarization requirements
    pursuant to § 22.901(d)(2).

[^64]: Andrew Corporation, Petition for Rulemaking, filed September 18,
    1998 (Andrew Petition). The Andrew Petition was placed on public
    notice. *See* Public Notice, Report No. 2304 (rel. Nov. 3, 1998).

[^65]: *See* Andrew Corporation, DA 00‑455 (rel. March 1, 2000).

[^66]: A polarization diversity antenna array comprises two receiving
    antennas positioned orthogonally at angles plus and minus 45 degrees
    to vertical. In urban, high multipath environments, polarization
    diversity antenna arrays can substitute for the larger space
    diversity antenna arrays commonly used for cellular base stations.
    The smaller size of the polarization diversity antenna array reduces
    the visual impact of the cellular base station tower, which may
    assist the carrier when seeking local zoning approval. Andrew also
    ascribed other technical and operational advantages to polarization
    diversity antenna arrays. *See* Andrew Petition at 4, 5.

[^67]: Polarization diversity antenna arrays currently can be used at
    cellular base stations. To comply with the current rule, however,
    carriers transmitting compatible analog transmissions must
    additionally use either a third antenna producing vertically
    polarized waves (and a third transmission line) or a power splitter
    and two duplexors to feed equal and properly phased transmitting
    power to each of the two antennas in the array. If the rule is
    amended as we propose, carriers could transmit using one of the two
    antennas in the array, resulting in a slant-polarized wave rather
    than a vertically-polarized wave.

[^68]: Andrew Petition at 8.

[^69]: Comments of AirTouch, filed December 3, 1998, at 4.

[^70]: Comments of GTE, filed December 3, 1998, at 2.

[^71]: Although Andrew requested relief only for cellular base stations,
    we believe that the rule should be amended for cellular mobile and
    auxiliary test stations as well.

[^72]: We further propose to eliminate the reference to section 22.367
    contained in section 22.901(d)(2), which would be rendered
    unnecessary by the proposed amendment to section 22.367.

[^73]: In the introductory paragraph of section 22.941, one sentence
    reads "SIDs are transmitted by cellular systems so that cellular
    mobile stations can determine whether the system through which they
    are communicating is a system to which they subscribe, or whether
    they are considered by the system to be roamers." This is, however,
    somewhat of an oversimplification of the situation with current
    cellular systems. Many systems transmit two or more different SIDs
    in order to treat subscribers of certain other systems as
    non-roamers.

[^74]: *See* 47 C.F.R. §§ 22.941(a), (c).

[^75]: *See* 47 C.F.R. § 22.941(b).

[^76]: *See Part 22 Rewrite*, Appendix A, 9 FCC Rcd at 6574.

[^77]: *See Revision of Part 22 of the Commission's Rules Governing the
    Public Mobile Services, Notice of Proposed Rulemaking, CC Docket
    No. 92‑115*, 7 FCC Rcd 3658, 3673-74 (1992) (hereinafter *Part 22
    Rewrite NPRM*); *Part 22 Rewrite*, 9 FCC Rcd at 6574.

[^78]: *See Part 22 Rewrite NPRM*, Appendix A, 7 FCC Rcd at 3674.

[^79]: We note, for example, that in September 1997, the Commission
    discontinued assigning cellular manufacturer's codes, a portion of
    the ESN; this function is now performed by the Telecommunications
    Industry Association. *See*
    [http://www.tiaonline.org/pubs/press_releases/1997/97-71.cfm]{.underline}.
    *See also* [http://www.cibernet.com]{.underline}/.

[^80]: Within its CGSA, a cellular system is entitled to protection from
    co-channel and first-adjacent channel interference and from capture
    of subscriber traffic by adjacent systems on the same channel block.
    *See* 47 C.F.R. § 22.912(d).

[^81]: Cardinal radials are eight imaginary straight lines extending
    radially on the ground from an antenna location, defined according
    to specified azimuths. *See id.* at § 22.99 (defining cardinal
    radials).

[^82]: An SAB measures the service area of a particular cell site and is
    a component of the CGSA, which is a composite of the service areas
    of all of the cells in the particular cellular system. It also is
    used to evaluate extensions and traffic capture. *See id.* at §§
    22.911-12.

[^83]: *ULS Report and Order*, 13 FCC Rcd. 21027 (1998), *ULS Memorandum
    Opinion and Order on Reconsideration*, 14 FCC Rcd. 11,145 (1999).

[^84]: 47 C.F.R. §22.946(a).

[^85]: 47 C.F.R. § 22.323.

[^86]: *See Amendment of the Commission's Rules to Permit Flexible
    Service Offerings in the Commercial Mobile Radio Services*,
    WT Docket No. 96‑6, *First Report and Order and Further Notice of
    Proposed Rulemaking*, 11 FCC Rcd 8965, 8967 ¶ 3 (1996) (*CMRS Flex
    First Report and Order*).

[^87]: *See id.*; 4 7 C.F.R. § 22.901(d) (codifying co-primary
    authorization for cellular service).

[^88]: 47 C.F.R. § 22.901(d).

[^89]: *See Amendment of the Commission's Rules to Permit Flexible
    Service Offerings in the Commercial Mobile Radio Services*,
    WT Docket No. 96‑6, *Second Report and Order and Order on
    Reconsideration*, FCC 00‑246 (rel. Jul. 20, 2000) (*CMRS* *Flex
    Second Report and Order*).

[^90]: *See id*. at 7, ¶ 13.

[^91]: *See id*. at 8, ¶ 14.

[^92]: *See* Public Notice, *Wireless Telecommunications Bureau Seeks
    Public Comment on Petition to Amend 47 C.F.R. Section 22.323 to
    Allow CMRS Licensees to Provide Limited Program Distribution
    Service*, DA 00‑160 (WTB rel. Feb. 9, 2000) (*FreePage PN*). A
    separate order denied FreePage's request for a waiver, a
    developmental license or an experimental license to offer its
    proposed service. *See FreePage Corporation,* DA 00‑159 (WTB rel.
    Feb. 9, 2000).

[^93]: In addition to FreePage's comments, comments in support of
    FreePage's petition were filed by Chadmoore Wireless Group, Inc. and
    Arch Communications Group, Inc., and comments opposing FreePage's
    petition were filed by the National Association of Broadcasters.
    Reply comments were filed by FreePage.

[^94]: *See id.* at 6, ¶ 10, 7, ¶13 (discussing comments); *CMRS Flex
    First Report and Order*, 11 FCC Rcd at 8968‑69 (holding that mobile
    or fixed incidental services offered by CMRS carriers fall within
    the definition of mobile service and are subject to CMRS
    regulation). CMRS are statutorily exempt from state and local
    government regulation of rates and entry under section 332(c)(3) of
    the Communications Act, 47 U.S.C. § 332(c)(3).

[^95]: *See CMRS Flex Second Report and Order* at 5-6, ¶ 10 (describing
    GTE comments).

[^96]: Parties who addressed these matters in comments filed in response
    to the *FreePage PN* need not repeat their comments in response to
    this *Notice*. *See supra* note 90 (listing comments received in
    response to *FreePage PN*). We will enter those comments in the
    record in this docket.

[^97]: 47 C.F.R. § 22.937.

[^98]: 47 C.F.R. § 22.943.

[^99]: 47 C.F.R. § 22.945.

[^100]: The first 30 Metropolitan Statistical Area (MSA) licenses were
    awarded through comparative hearings and the Commission adopted
    rules in 1984 to award licenses for the remaining MSAs and RSAs
    through random selection*. See, e.g., Amendment of the Commission's
    Rules To Allow the Selection from Among Mutually Exclusive Competing
    Cellular Applications Using Random Selection or Lotteries Instead of
    Comparative Hearings,* CC Docket No. 83-1096, 98 FCC 2d 175 (1984).

[^101]: 47 C.F.R. § 22.917 (1981). *See An Inquiry into the Use of the
    Bands 825-845 MHz and 870-890 MHz for Cellular Communications
    Systems*, CC Docket No. 79-318, 86 FCC 2d 469 (1981).

[^102]: *Id*. at 501. The Commission also indicated that because the
    cellular rules provide that "only two cellular systems can operate
    in the same geographic area, the inability of any cellular licensee
    to provide service could significantly inconvenience the public and
    would cause a huge amount of spectrum to be unused." *Id.* at 502.

[^103]: Section 22.943 was originally adopted as former Section 22.920
    in 1984. *See Amendment of the Commission's Rules To Allow the
    Selection from Among Mutually Exclusive Competing Cellular
    Applications Using Random Selection or Lotteries Instead of
    Comparative Hearings,* CC Docket No. 83-1096, 98 F.C.C. 2d 175
    (1984).

[^104]: Section 22.139 was incorporated into consolidated Commission
    rule Section 1.948(i), 47 C.F.R. § 1.948(i). *See 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, 13 FCC
    Rcd 21,027 (1998). The Section 22.943 exceptions to the
    anti-trafficking rule permit the filing of: 1) applications
    reflecting the trading of an ownership interest in an authorized but
    unconstructed cellular system in one market for a commensurate
    interest in a cellular system in another market; and 2) applications
    to transfer or assign a cellular authorization obtained by lottery
    after commencement of service.

[^105]: 98 FCC Rcd. at 217.

[^106]: In general, the exceptions to the prohibition against having an
    interest in more than one cellular application in the same cellular
    market are for licensees of existing systems whose cellular
    geographic service area (CGSA) abuts a proposed CGSA and for
    ownership interests in publicly traded corporations of less than 5
    per cent.

[^107]: *See Amendment of the Commission's Rules To Allow the Selection
    from Among Mutually Exclusive Competing Cellular Applications Using
    Random Selection or Lotteries Instead of Comparative Hearings,* CC
    Docket No. 83-1096, 98 F.C.C. 2d 175 (1984).

[^108]: *Id*. at 218, fn. 117.

[^109]: *Id*. at 218. However, the Commission determined that interests
    of less than 1 per cent would not be considered in the ownership
    analysis.

[^110]: After July 1, 1997, the Commission was prohibited from issuing
    any license or permit using a system of random selection. The
    Commission is now required to resolve mutually exclusive
    applications for initial licenses through competitive bidding.
    *See,* 1997 Balanced Budget Act, Pub. L. No. 105-33, 111 Stat. 251,
    at Section 3002(a), *codified at* 47 U.S.C. § 309(i),(j) (1997).

[^111]: Section 1.948(i) provides that "\[a\]pplications for approval of
    assignment or transfer may be reviewed by the Commission to
    determine if the transaction is for purposes of trafficking in
    service authorizations." 47 C.F.R § 1.948(i). Thus, the Commission
    may still, in its discretion, require submission of an affirmative
    showing to demonstrate that the assignor did not acquire the
    authorization for the principal purpose of speculation or profitable
    resale of the authorization. 47 C.F.R. § 1.948(i)(2). *See also*
    Forbearance from Applying Provisions of the Communications Act to
    Wireless Telecommunications Carriers, WT Docket No. 98-100, *First
    Report and Order*, FCC 00-311, ¶¶ 29-33 (rel. Sept. 8,
    2000)(discussing Section 1.948(i)).

[^112]: *See* 47 C.F.R. § 22.935.

[^113]: *See* 47 C.F.R. § 22.935(c); *see also* 47 C.F.R. § 22.940
    (setting forth the relevant criteria to be considered in comparative
    renewal proceedings).

[^114]: 47 C.F.R. § 22.937(g).

[^115]: *See* 47 C.F.R. § 22.943(c).

[^116]: 47 C.F.R. § 22.942.

[^117]: 2000 Biennial Regulatory Review -- Spectrum Aggregation Limits
    for Commercial Mobile Radio Services, WT Docket No. 01-14, *NPRM*,
    FCC 01-28 (rel. 1/23/01).

[^118]: 47 C.F.R § 1.1206(b).

[^119]: *See* *id.* at § 1.1206(b)(2).

[^120]: *See* *In re* *Electronic Filing of Documents in Rulemaking
    Proceedings*, 13 FCC Rcd. 11322 (1998) (amending Parts 0 and 1 of
    the Commission's rules to allow electronic filing of comments and
    other pleadings).

[^121]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et. seq*.,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^122]: *See* 5 U.S.C. § 603(a).

[^123]: *Id*.

[^124]: Biennial Regulatory Review, CC Docket No. 00-175, *Report*, FCC
    00-456 (adopted December 29, 2000; released January 17, 2001)
    (*Biennial Review Report*); Biennial Regulatory Review 2000 Updated
    Staff Report, released January 17, 2001 (*Biennial Review Staff
    Report*).

[^125]: The specific technical rules include: Sections 22.367(a)(4),
    22.901, 22.905, 22.911, 22.915, 22.917, 22.919, 22.933, 22.941, and
    22.946 of the Commission's rules.

[^126]: The specific cellular anti-trafficking rules include: Sections
    22.937, 22.943, and 22.945 of the Commission's rules.

[^127]: *See* 47 C.F.R. § 22.323.

[^128]: *See* 5 U.S.C. § 605.

[^129]: *See* para. 42, *supra*.

[^130]: Omnipoint Request for Broadband Declaratory Ruling or Waiver
    Concerning PCS Emissions Limits Rule Section 24.238, DA 00-1767, 15
    FCC Rcd. 13,422 (2000).

[^131]: *Id.* at ¶ 1.

[^132]: 5 U.S.C. § 603(b)(3).

[^133]: *Id*. § 601(6).

[^134]: *Id*. § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies "unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." *Id*.

[^135]: Small Business Act, 15 U.S.C. § 632 (1996).

[^136]: *See* 47 C.F.R. § 90.493(b).

[^137]: 13 C.F.R. § 121.201, SIC code 4812.

[^138]: *1992 Census, Series UC92-S-1*, at Table 5, SIC code 4812.

[^139]: *See Telecommunications Industry Revenues: 1999*, Industry
    Analysis Division, Common Carrier Bureau (Sept. 2000).

[^140]: Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, *Third Report*, 13 FCC Rcd 19746, 19792
    (1998).

[^141]: Air-ground radiotelephone service is defined in Section 22.99 of
    the Commission's rules, 47 C.F.R. § 22.99.

[^142]: Rural Radiotelephone Service is defined in Section 22.99 of the
    Commission's rules, 47 C.F.R. § 22.99.

[^143]: BETRS is defined in Sections 22.757 and 22.729 of the
    Commission's rules, 47 C.F.R. §§ 22.757, 22.729.

[^144]: 13 C.F.R. § 121.201, Standard Industrial Classification (SIC)
    code 3663.

[^145]: ^?^ U.S. Dept. of Commerce, 1992 Census of Transportation,
    Communications and Utilities (issued May 1995), SIC code 3663
    (estimate created by the Census Bureau under contract to the Office
    of Advocacy, SBA).

[^146]: *See* 5 U.S.C. § 603.

[^147]: Since 1997, the Commission has suspended the E-911 rule
    requiring service providers to pass on TTY calls as it applies to
    digital wireless systems. *See* Revision of the Commission's Rules
    to Ensure Compatibility with Enhanced 911 Emergency Calling Systems,
    *Memorandum, Opinion and Order*, 12 FCC Rcd 22665, ¶ 59 (*E-911
    Proceeding*) (suspending enforcement of TTY requirement until
    October 1, 1998*)*; *E-911 Proceeding* *Order*, 13 FCC Rcd 21746, ¶
    8 (1998) (Wireless Telecommunications Bureau Order extending
    suspension through November 15, 1998); *E-911 Proceeding Order*, 14
    FCC Rcd 694, ¶ 10 (1998) (Wireless Telecommunications Bureau Order
    extending suspension through December 31, 1998); *E-911 Proceeding
    Order*, 14 FCC Rcd 1700, ¶ 4 (1998) (granting over 100 temporary
    waivers of the rule); *Order*, 14 FCC Rcd 3304 (1999); *E-911
    Proceeding Fourth Report and Order*, FCC 00-436, CC Docket No.
    94-102 (rel. Dec. 14, 2000) ¶¶ 27-8 (establishing June 30, 2002 as
    the deadline for digital wireless providers to be capable of
    transmitting 911 calls made using TTY devices). The Hearing Aid
    Compatibility Act of 1988 exempted "telephones used with public
    mobile services" from mandatory compatibility. 47 U.S.C. §
    610(b)(2)(A)(i); *see* 47 C.F.R. § 68.4(a). The Commission, however,
    is statutorily required to "periodically assess" this exemption. 47
    U.S.C. § 610(b)(2)(C). Today, digital wireless devices are not
    hearing aid compatible. We have before us a request to review this
    exemption. *See* Letter from the Wireless Action Coalition to
    William Caton, Secretary, FCC (Oct. 7, 2000). I believe we should
    move ahead and assess the exemption.

[^148]: Section 255 of the Communications Act requires that "a provider
    of telecommunications service shall ensure that the service is
    accessible to and usable by individuals with disabilities, if
    readily achievable." 47 U.S.C. § 255(c). In Section 1 of the Act,
    moreover, the Congress charged the Commission with the
    responsibility "to make available, so far as possible, to all the
    people of the United States . . . a rapid, efficient, Nation-wide,
    and world-wide wire and radio communications service." 47 U.S.C. §
    151.

[^149]: Notice at ¶ 31.

[^150]: *Id.* at n.16 (quoting 47 C.F.R. § 22.901(a)).

[^151]: *See* *id.* at ¶ 14.

[^152]: 47 U.S.C. § 161(b).

[^153]: The Commission currently has before it a complaint that a PCS
    provider has engaged in a print advertising campaign that includes
    misleading home coverage area information. *See* Letter from Andrea
    C. Levine, Vice President, National Advertising Division, Council of
    Better Business Bureaus, Inc. to David Solomon, Chief, Enforcement
    Bureau, FCC (April 12, 2001). While I take no position as to the
    underlying merits of that complaint, I note that many consumers view
    quality of service and extent of network coverage, along with price,
    as the critical factors in choosing a CMRS provider.