**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 05-265         |
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| Reexamination of Roaming         | ** | WT Docket No. 00-193         |
| Obligations of Commercial Mobile |    |                              |
| Radio Service Providers          | *  |                              |
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| Automatic and Manual Roaming     | ** |                              |
| Obligations Pertaining to        |    |                              |
| Commercial Mobile Radio Services | *  |                              |
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**MEMORANDUM OPINION & ORDER AND NOTICE OF PROPOSED RULEMAKING**

**Adopted: August 24, 2005 Released: August 31, 2005**

**Comments Due:** **(60 days after publication in the Federal
Register)**

**Reply Comments Due:** **(90 days after publication in the Federal
Register)**

By the Commission: Commissioners Copps and Adelstein issuing separate
statements.

**Table of Contents**

[Paragraph]{.underline}

**I. INTRODUCTION** 1

**II. BACKGROUND** 2

A. Regulatory Actions Pertaining to CMRS Roaming 4

B. Current State of the CMRS Marketplace 11

**III. MEMORANDUM OPINION AND ORDER** 18

**IV. NOTICE OF PROPOSED RULEMAKING** 20

A. Manual Roaming 21

B. Automatic Roaming 25

1\. Roaming Agreements 33

2\. Small and Rural Carrier Concerns 38

3\. Technical Considerations 44

**V. PROCEDURAL MATTERS** 50

A. *Ex Parte* \-- Permit-But-Disclose 50

B. Initial Regulatory Flexibility Analysis 51

C. Initial Paperwork Reduction Act of 1995 Analysis 52

D. Comment Period and Procedures 53

E. Further Information 54

**VI. ORDERING CLAUSES** 55

Appendix: Initial Regulatory Flexibility Analysis

# Introduction

1.  In this Memorandum Opinion and Order and Notice of Proposed
    Rulemaking, we terminate the open proceeding relating to the
    automatic and manual roaming obligations of Commercial Mobile Radio
    Services (CMRS) providers in WT Docket No. 00-193,[^1] and initiate
    a new proceeding to examine whether our current rules regarding
    roaming requirements applicable to CMRS providers should be modified
    given the current state of the CMRS market. In the Memorandum
    Opinion and Order portion of this decision, we terminate the
    previous consideration of roaming issues in WT Docket No. 00-193,
    primarily on the basis that the comments filed and the matters at
    issue therein are now stale due to the passage of time and other
    regulatory and industry changes that have occurred since its
    commencement. As a result, we decide to terminate the proceeding
    without the adoption of rules. We nonetheless decide to initiate a
    Notice of Proposed Rulemaking in a new proceeding to examine CMRS
    roaming in a manner that takes into account current technological
    and market conditions. Our decision today will allow us to develop a
    record with up-to-date information regarding the state of today's
    CMRS marketplace in an effort to determine whether there is a need
    for a regulatory regime for roaming services.

# background

2.  "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 service or financial relationship to
    place an outgoing call, to receive an incoming call, or to continue
    an in-progress call.[^2] Typically, although not always, roaming
    occurs when a subscriber places or receives a call while physically
    located outside of the service area of its "home" CMRS provider. The
    basic technical requirement for roaming, whether done manually or
    automatically, is that the subscriber has a handset that is capable
    of accessing the roamed-on (host) system.[^3] The Commission
    previously has determined that roaming is a common carrier service
    and that CMRS providers are subject to the common carrier provisions
    of Title II of the Act.[^4] Therefore, complaints and enforcement
    actions involving unjust and unreasonable charges, practices, or
    discriminatory conduct by CMRS carriers in the provision of roaming
    services are covered by the complaint process set forth in Title II
    of the Act.[^5]

3.  There are two forms of roaming \-- manual and automatic. With manual
    roaming, the most rudimentary form of roaming, the subscriber must
    establish a relationship with the host carrier on whose system he or
    she wants to roam in order to make a call.[^6] Typically, the
    roaming subscriber accomplishes this in the course of attempting to
    originate a call by giving a valid credit card number to the carrier
    providing the roaming service.[^7] By contrast, with automatic
    roaming, the roaming subscriber is able to originate or terminate a
    call without taking any special actions.[^8] Automatic roaming
    requires a pre-existing contractual agreement between the home and
    the roamed-on host system.[^9]

## Regulatory Actions Pertaining to CMRS Roaming Obligations

4.  *Manual Roaming Requirements*. The Commission first adopted manual
    roaming requirements in 1981 as part of the original cellular
    service rules.[^10] Prior to 1996, only cellular carriers were
    required to offer manual roaming under the Commission's rules.[^11]
    In 1996, in the *Interconnection and Resale Obligations Second
    Report and Order*, the Commission extended the manual roaming rule
    to include other CMRS providers in the Broadband Personal
    Communications Service (PCS) and Specialized Mobile Radio Service
    (SMR) that offer competitive telephony services comparable to
    cellular service, so long as the roamer's handset is technically
    capable of accessing their systems.[^12]

5.  The Commission's decision to extend the manual roaming rule to other
    CMRS services was premised on its determination that the
    availability of roaming on broadband wireless networks was important
    to the development of nationwide, ubiquitous, and competitive
    wireless voice telecommunications. Further, the Commission was
    concerned that while these systems were being built, market forces
    alone might not be sufficient to cause roaming services to become
    widely available.[^13] In addition, the Commission stated that
    roaming capability may be a key competitive consideration in the
    wireless market and that new entrants may be at a competitive
    disadvantage with respect to incumbent wireless carriers if their
    subscribers have no ability to roam on other networks.[^14] The
    Commission further determined to extend the rule "in order to ensure
    regulatory parity and to promote competition in the wireless market
    by enhancing all such carriers' abilities to compete."[^15]

6.  In the 1996 *Interconnection and Resale Obligations Third NPRM*, the
    Commission sought additional comment on both automatic and manual
    roaming obligations. In particular, it asked whether any rule
    governing covered providers' obligations to provide automatic
    roaming services should be adopted. The Commission tentatively
    concluded that the market might render any automatic roaming
    requirements unnecessary five years after the last group of initial
    broadband PCS licenses was awarded. In this regard, the Commission
    asked whether any roaming rule, manual or automatic, should sunset
    at that time.[^16]

7.  In July 2000, the Commission addressed reconsideration petitions
    regarding the manual roaming requirement.[^17] Although the
    Commission generally affirmed the manual roaming requirement, it
    modified the definition of CMRS providers to which the rule applied,
    including extending the rule to cover certain CMRS data as well as
    voice providers. As a result, the manual roaming requirement
    currently applies to all cellular, broadband PCS, and SMR providers
    that offer real-time, two-way switched voice or data service that is
    interconnected with the public switched network and utilizes an
    in-network switching facility that enables the provider to reuse
    frequencies and accomplish seamless hand-offs of subscriber
    calls.[^18] In that same order, in addition to resolving pending
    reconsideration petitions, the Commission terminated consideration
    of the roaming issues raised in the *Interconnection and Resale
    Obligations Third NPRM* because changes in the market and technology
    had rendered the record stale.

8.  *2000 CMRS Roaming NPRM*. In October 2000, the Commission initiated
    a new proceeding (in WT Docket No. 00-193) and adopted the *2000
    CMRS Roaming NPRM* to establish a vehicle by which roaming issues
    could be reexamined. In the 2000 *CMRS Roaming NPRM*, the Commission
    affirmed the *Interconnection and Resale Obligations Second Report
    and Order*'s conclusion that ubiquitous roaming on CMRS systems is
    important to the development of a seamless, nationwide "network of
    networks."[^19] However, the Commission stated that to the extent
    competition in the CMRS market has eliminated the means or economic
    incentives for certain CMRS providers to discriminate unreasonably
    in the provision of roaming, or otherwise to engage in unjust or
    unreasonable practices, the imposition of a roaming requirement
    would not be in the public interest. Thus, the Commission stated, it
    may be in the public interest to impose a roaming requirement
    "\[o\]nly where market forces alone are not sufficient to ensure the
    widespread availability of competitive roaming services, and where
    roaming is technically feasible without imposing unreasonable costs
    on CMRS providers."[^20]

9.  The *2000 CMRS Roaming NPRM* sought comment on whether any roaming
    rule, manual and/or automatic, should be sunset. The Commission
    renewed the *Interconnection and Resale Obligations Third NPRM*'s
    tentative conclusion that any roaming rule should apply only for a
    transitional period, *i.e*., until five years after the last group
    of initial licenses was issued for broadband PCS spectrum. This was
    based on the belief that once broadband PCS providers' build-out
    periods were completed, there would likely be sufficient wireless
    capacity available to render a manual or automatic roaming rule
    unnecessary.[^21] The *2000 CMRS Roaming NPRM* also inquired whether
    any sunset of the manual roaming rule should be contingent upon
    adoption of an automatic roaming rule.[^22]

10. The record in response to the *2000 CMRS Roaming NPRM* closed in
    February 2001. The Commission received numerous comments and reply
    comments, as well as a number of *ex parte* presentations from
    interested parties. In November 2004, the Rural Telecommunications
    Group, Inc. (RTG) filed a Petition for Commission Action requesting
    that the Commission, either on its own motion or pursuant to its
    petition, refresh the record in this proceeding.[^23] More recently,
    RTG gave an *ex parte* presentation in which it requested that the
    Commission mandate automatic roaming at just and reasonable rates in
    order to assure seamless communications for customers throughout the
    United States.[^24] In addition, Leap Wireless International, Inc.
    has made *ex parte* presentations requesting that the Commission
    review how roaming issues are affecting small wireless
    carriers.[^25]

## Current State of the CMRS Marketplace

11. *Recent Industry Developments*. Since the closing of the record in
    response to the *2000 CMRS Roaming NPRM*, the CMRS market has
    undergone significant growth and transformation. During 2003, the
    mobile telephony sector showed significant growth, with mobile data
    services beginning to make a significant contribution to that
    growth. In the 12 months ending December 2003, the mobile telephony
    sector generated over \$87 billion in revenues,[^26] increased
    subscribership from 141.8 million to 160.6 million,[^27] and
    produced a nationwide penetration rate of roughly 54 percent.[^28]
    Mobile data services continued to grow in popularity, with data
    constituting from 2 to 5 percent of the revenues of some mobile
    operators.[^29] Average revenue per minute of use, a proxy for the
    pricing of mobile voice services, declined by 13 percent to
    \$0.10.[^30]

12. In conjunction with the growth of the CMRS industry, a number of
    competing national, regional, and local network operators have
    emerged, and U.S. consumers have continued to benefit from
    competition in the CMRS marketplace. In September 2004, 276 million
    people, or 97 percent of the total U.S. population, lived in
    counties with access to three or more different operators (cellular,
    broadband PCS, and/or digital SMR providers) offering mobile
    telephone service.[^31] Almost 250 million people, or 88 percent of
    the U.S. population, lived in counties with five or more mobile
    telephone operators competing to offer service.[^32] The resulting
    competitive pressure has led mobile telephone carriers to upgrade
    their networks with next generation technologies that allow them to
    offer mobile data services at higher data transfer speeds.[^33] Both
    small and large carriers are developing and implementing new "2.5G
    and 3G" digital technologies and networks to accommodate new
    applications.[^34] Mobile telephony carriers have also continued to
    expand their geographic coverage through the Commission's spectrum
    auctions or earlier licensing procedures, and through various types
    of transactions, including mergers and acquisitions, joint ventures,
    contractual affiliations with smaller carriers, and spectrum sales
    and swaps.[^35]

13. *Roaming Issues Raised in Recent Merger Transactions.* Although the
    record in the *2000 CMRS Roaming* proceeding has been closed since
    2001, roaming has emerged as an issue in several proceedings in the
    last year dealing with wireless mergers. In October 2004, as part of
    its review and consideration of the AT&T Wireless/Cingular merger,
    the Commission examined the state of the mobile telephony
    marketplace, and specifically addressed roaming issues that had been
    raised in the record of that proceeding.[^36] The Commission
    concluded that the proposed merger would not adversely affect the
    availability of roaming services or raise roaming rates passed
    through to customers.[^37] The Commission found that the provision
    of automatic roaming services had become increasingly competitive
    over time, and that the continued presence of two nationwide and
    numerous regional carriers using Global System for Mobile
    Communications ("GSM") technology after the merger should be
    sufficient to ensure the continued availability of roaming services
    at competitive rates to Cingular's potential roaming partners.[^38]

14. The ALLTEL Corporation (ALLTEL)-Western Wireless Corporation
    (Western Wireless) merger and the Sprint-Nextel merger have again
    led some parties to raise competitive concerns regarding roaming. A
    number of smaller carriers asserted that the proposed mergers would
    be detrimental to roaming. In the ALLTEL-Western Wireless
    proceeding, Lamar County Cellular (Lamar) and Rural
    Telecommunications Group, Inc. (RTG) asserted that the merger should
    be denied because it would create the opportunity for ALLTEL to
    engage in anticompetitive roaming practices.[^39] They noted that
    roaming arrangements can only be made with a technologically
    compatible network, and that the proposed merger would result in a
    two-to-one reduction in analog carriers in many markets, leaving
    analog-only carriers with only one possible roaming partner in those
    areas.[^40] They suggested that this sort of market consolidation
    may lead larger carriers to favor each other with "sweetheart"
    roaming deals or to charge higher premiums for costumers of small
    rural carriers to roam on their networks.[^41] They further asserted
    that rural carriers may lose roaming coverage previously provided by
    Western Wireless if ALLTEL chooses not to honor existing Western
    Wireless roaming agreements, and that ALLTEL may further restrict
    roaming availability by not entering into any new agreements in the
    future.[^42] They noted that because small carriers have limited
    service areas, the availability of automatic roaming arrangements is
    crucial to their ability to compete.[^43] United States Cellular
    Corporation expressed a similar concern that "national"
    sized-carriers such as the proposed merged entity could in the
    future refuse to sign roaming agreements with smaller carriers, and
    that the inability to obtain automatic roaming will put these
    smaller carriers out of business, reducing competitive pressures on
    the larger carriers even further.[^44]

15. In the Sprint-Nextel merger, a number of parties either requested
    that the Commission impose a condition requiring the merged entity
    to enter into roaming agreements,[^45] or declare a national policy
    requiring large nationwide carriers to enter into reasonable,
    reciprocal, roaming agreements.[^46] For example, SouthernLINC
    Wireless contended that a condition requiring the merged entity to
    enter into roaming agreements was necessary because it had been
    unable to negotiate a reasonable roaming agreement with Nextel or
    its affiliate, Nextel Partners, which Southern LINC stated were its
    only potential roaming partners.[^47] Although SouthernLINC Wireless
    reached an agreement with Nextel, SouthernLINC Wireless stated that
    the agreement restricted its subscribers to basic interconnected
    voice roaming and denied them access to push-to-talk digital
    dispatch roaming or data roaming services.[^48]

16. In approving the ALLTEL-Western Wireless and Sprint-Nextel merger
    proposals, we considered, as part of our review, the impact of these
    transactions on roaming.[^49] In response to the concerns raised by
    parties regarding the current state of the roaming market in rural
    areas, we noted that the Commission's existing manual roaming rules
    address many of these concerns and offer possible avenues for
    relief.[^50] Under the Commission's current manual roaming rule,
    other carriers are required to complete calls initiated by ALLTEL's
    and Sprint's customers where ALLTEL and Sprint cannot because it has
    neither its own signal nor an automatic agreement. In addition, to
    further ensure compliance, we adopted as a condition to our approval
    a reciprocal duty, *i.e*., that ALLTEL and Sprint may not prevent
    its customers from reaching another carrier and completing their
    calls in these circumstances, unless specifically requested to do so
    by a subscriber.[^51] We also noted that if a roaming partner
    believes that ALLTEL or Sprint is charging unreasonable roaming
    rates, it can file a complaint with the Commission under Section 208
    of the Communications Act.[^52] We recognized, however, that the
    manual roaming requirement and the ability to file a Section 208
    complaint may not fully address the concerns raised by the
    commenters. Given the broad scope of the concerns raised \-- many of
    which seem to call for a reevaluation of the Commission's roaming
    rules and policies \-- we determined that it was more appropriate to
    address those concerns in the context of a rulemaking proceeding.
    We, therefore, stated that we would initiate a rulemaking proceeding
    in the near future that would consider the Commission's rules
    regarding the roaming requirements applicable to CMRS providers
    under current market conditions and developments in technology.[^53]

17. *Rural Markets*. In addition to issues raised in the merger
    proceedings, commenters have recently raised particular concerns
    regarding roaming in rural markets. For instance, in response to the
    Public Notice issued in WT Docket No. 05-71 concerning the *Tenth
    Annual CMRS Competition Report*, small and rural wireless service
    providers assert that the amount of roaming traffic they exchange
    with other carriers has been significantly reduced as the large
    carriers enter into roaming agreements with other larger carriers
    and avoid roaming on smaller carriers' networks.[^54] They also
    assert that large, nationwide carriers use their market power to
    demand asymmetric roaming rates from small and rural carriers.[^55]
    Furthermore, in the pending roaming docket, through recent *ex
    partes*, small and rural carriers reiterate these concerns.[^56]

# MEMORANDUM OPINION AND ORDER

18. We have reviewed the record received in WT Docket No. 00-193 in
    response to the *2000 CMRS Roaming NPRM*. Given continued
    advancements in technology and the current state of the CMRS market
    since adoption of the *2000 CMRS Roaming NPRM,* we find that the
    questions presented and the tentative conclusions made therein do
    not reflect the current CMRS marketplace and that the record in that
    proceeding has become stale. Of particular importance is that the
    record has become significantly outdated regarding the state of
    competition in the CMRS market and the impact of such competition on
    our consideration of the appropriate regulatory regime for roaming
    services. For example, in considering regulatory options for
    addressing roaming, the *2000 CMRS Roaming NPRM* relies upon the
    Commission's findings and conclusions in the Commission's August
    2000 *Fifth Annual CMRS Competition Report*. Significantly, there
    have been four annual CMRS reports issued since that time, which
    have further tracked various industry developments in the provision
    of CMRS voice and data services. Also, the record in the *2000 CMRS
    Roaming* proceeding does not take into account the potential impact
    that recent mergers between CMRS providers could have on the future
    development and provision of roaming services. We believe that
    evaluation of these factors is necessary to develop an adequate
    record on whether current CMRS roaming requirements should be
    modified.

19. In this regard, we note that the Rural Telecommunications Group,
    Inc. (RTG) has petitioned the Commission to refresh the record in
    the *2000 CMRS Roaming* proceeding.[^57] RTG cites "significant
    industry changes" as supporting its request for a "fresh look at
    competitive roaming conditions and their effect on customers in all
    regions of the nation, and most significantly, rural regions."[^58]
    We concur with RTG that a fresh look at roaming is warranted because
    of the significant advancements in technology and other significant
    developments in the CMRS market that have occurred since 2000,
    including recent market consolidation. In light of these substantial
    developments, however, we believe that the best course of action is
    to terminate the old proceeding and initiate a Notice of Proposed
    Rulemaking in a new proceeding that takes the most current
    technological and market conditions into account and examines the
    potential impact of these conditions on our regulation of roaming.
    Therefore, we terminate WT Docket No. 00-193 by this Order.

# NOTICE OF PROPOSED RULEMAKING

20. In this Notice of Proposed Rulemaking (Notice)*,* we initiate a new
    proceeding to reexamine the state of roaming in the CMRS marketplace
    and whether CMRS providers should be subject to roaming obligations.
    Accordingly, below, we discuss and seek comment on issues related to
    manual and automatic roaming, including issues concerning roaming
    negotiations, small and rural carrier concerns, and technical
    considerations.

## Manual Roaming

21. In 1996, having determined that roaming was a critical element of
    CMRS service, the Commission found that, at a minimum, some form of
    a roaming rule was necessary as the broadband PCS networks were
    being built out. Accordingly, as discussed above, in the
    *Interconnection and Resale Obligations Second Report and Order* the
    Commission expanded the manual roaming requirement to broadband PCS
    and certain SMR providers so that subscribers with technically
    compatible handsets would be assured of being able to roam.[^59]

22. We now believe it is appropriate, in the context of this Notice, to
    reexamine the manual roaming requirement. We seek up-to-date
    information on the practice of manual roaming and the continued
    utility of the manual roaming rule. We are aware of at least two
    ways manual roaming is conducted. In its simplest form, a host
    system uses information sent by the roaming mobile unit during call
    setup to determine whether the unit is a subscriber in the market
    and, if not, routes the call to a third party for operator
    assistance, payment arrangements, and completing the call. In a more
    complex form, the host system uses the information to identify the
    unit's home carrier and determine whether that carrier has a roaming
    agreement in place with the host carrier. If no agreement exists,
    the host carrier routes the call to a third party as described
    above. In either case, roaming can only occur if the unit is
    technologically compatible with the host system.

23. We seek comment on how often subscribers avail themselves of manual
    roaming in either of its two forms or other forms, if available. In
    light of both the evolution of the CMRS market and advancements in
    CMRS technologies, to what extent has manual roaming fallen into
    disuse or been replaced by automatic roaming? Given the role of
    manual roaming in today's marketplace, we request comment regarding
    whether the manual roaming rule should be eliminated, either in
    combination with the promulgation of an automatic roaming rule or
    without such a rule. Alternatively, should the manual roaming rule
    be kept as a fallback for consumers when automatic roaming is
    unavailable? In recent merger orders, the Commission imposed a
    condition prohibiting the merged company from blocking manual
    roaming.[^60] To what extent is home carrier blocking of manual
    roaming a problem? Is a rule change \-- as opposed to merger
    conditions \-- an appropriate way to address this issue? Commenters
    should address the extent to which the manual roaming rule actually
    promotes the goals the Commission sought to achieve in its 1996
    *Interconnection and Resale Obligations Second Report and Order*,
    the nature and extent of any costs imposed by the manual roaming
    rule, and the relative weight of these costs and benefits.

24. In the *Interconnection and Resale Obligations Third NPRM* in 1996,
    the Commission stated its belief that once broadband PCS providers'
    buildout periods were completed, sufficient wireless capacity would
    be available that would likely render a manual roaming rule
    unnecessary and tentatively concluded that any roaming rule adopted
    should apply only for a transitional period.[^61] We seek comment on
    whether any manual roaming requirement that we retain or adopt in
    this proceeding should be subject to a sunset provision and, if so,
    when such a sunset should occur. We also inquire whether any sunset
    of the manual roaming rule should be contingent upon adoption of an
    automatic roaming rule.

## Automatic Roaming

25. In the *Interconnection and Resale Obligations Third NPRM*, the
    Commission determined that taking any action on automatic roaming
    would be premature because the record was inconclusive. Since the
    record predated operation of emerging wireless services, *e.g*.,
    2.5G services offered using auctioned PCS licenses, it did not
    demonstrate the failure of the market to ensure the widespread
    availability of automatic roaming agreements.[^62] In the *2000 CMRS
    Roaming NPRM*, the Commission stated that it would not adopt any
    automatic roaming requirement unless it was clear that providers'
    current practices were unreasonably hindering the operation of the
    mobile telephony market to the detriment of consumers.[^63] The
    *2000 CMRS Roaming NPRM* therefore sought comment on the
    availability of automatic roaming generally and on whether there is
    any evidence of unreasonable or discriminatory conduct.[^64]
    Considering the lapse of time and change of technologies and markets
    since the release of the *2000 CMRS Roaming NPRM*, we now seek
    up-to-date information on automatic roaming that would enable the
    Commission to fully consider the question and reach an informed
    decision about whether to adopt an automatic roaming rule.
    Interested parties are invited to discuss in detail whether, in the
    absence of an automatic roaming requirement, there have been any
    CMRS industry changes and trends that have positively or negatively
    affected the availability of roaming to consumers.

26. We note that the majority of commenters on the *2000 CMRS Roaming
    NRPM* opposed the adoption of an automatic roaming rule, arguing
    that it would not be in the public interest to do so because it
    would result in rate increases, poorer quality of service, and fewer
    choices for consumers.[^65] These commenters generally favored
    market-based solutions over regulatory mandates,[^66] arguing that
    market forces were working and roaming agreements were generally
    available,[^67] and claiming that an automatic roaming rule was
    unnecessary given the level of competition in the CMRS market.[^68]
    Several commenters argued that an automatic rule would eliminate
    incentives for carriers to build out their networks.[^69] Other
    commenters, however, supported the establishment of an automatic
    roaming rule. These commenters argued that the ability to roam is an
    important consideration to consumers and that a rule was necessary
    because the provision of roaming services was not competitive and
    suffered from increased concentration.[^70] Moreover, even some
    opponents of an automatic roaming rule expressed concern about the
    potential for anti-competitive abuses and urged the Commission to
    maintain a close watch on roaming practices.[^71]

27. We seek comment on how these arguments previously made in favor of
    and in opposition to adoption of an automatic roaming rule are
    affected by recent evolution of the CMRS marketplace. We are
    interested in the effects that the existing roaming environment has
    on U.S. consumers. For example, what effect has the existing roaming
    environment had on the availability, quality and price of services
    to consumers? Is there any disparate impact on consumers using
    services in rural areas? We seek comment on the availability of
    automatic roaming to consumers in the absence of an automatic
    roaming requirement. Are there instances in which providers refused
    to enter into automatic roaming agreements with other providers with
    compatible systems, or where they have discriminated with respect to
    the prices or other terms on which they make roaming agreements
    available to different carriers? We also seek comment on whether
    CMRS industry mergers could increase the incentive for large,
    nationwide carriers to deny automatic roaming agreements to their
    local or regional competitors. We note that in recent merger review
    proceedings, many parties raised important concerns about the
    current state of the roaming market, particularly in rural
    areas.[^72] We seek comment regarding evidence of discriminatory
    roaming practices on an industry-wide basis as well as on a
    market-specific basis. Commenters are invited to discuss the current
    availability of automatic roaming services in various regions with
    specific data, including the quality of services and the impact of
    roaming services on "dead spots" in many less populated areas.

28. Commenters should address both the potential benefits of various
    regulatory options and the potential costs. For example, would an
    automatic roaming rule create disincentives to the growth of
    facilities-based competition, or to the continued development of
    carriers with nationwide footprints? Would such a rule impede the
    development of new and improved roaming features? Are there new and
    improved roaming services that have developed over the past few
    years in the absence of an automatic roaming requirement? In
    addition, how would constraints imposed by any particular roaming
    rule affect the competitiveness of particular carriers? Would a
    nondiscrimination rule or any other automatic roaming rule thwart
    CMRS carriers' ability to compete vigorously on the basis of the
    particular roaming services provided, or otherwise impede carriers'
    ability to differentiate their roaming services? Would the costs of
    a rule impact small carriers disproportionately, such that some form
    of exemption for those carriers would be appropriate? We invite
    commenters to provide economic analysis and data regarding the
    potential benefits and costs of imposing an automatic roaming rule.

29. We also seek comment on any administrative costs that would arise
    from a non-discrimination requirement or other automatic roaming
    rule, were such a rule to be implemented. With respect to a
    potential non-discrimination requirement in particular, we seek
    comment on any burdens that would arise from the need to determine
    whether carriers seeking roaming agreements are "similarly
    situated."

30. We also seek comment on how to assess technical compatibility in an
    automatic roaming environment. Under the existing manual roaming
    rule, the subscriber seeking to roam must first possess a handset
    that is technically capable of accessing the roamed-on system.[^73]
    Similarly, we believe that if an automatic roaming requirement were
    imposed, the carrier seeking to enable its subscribers to roam on
    another system should have the burden of developing and implementing
    any technology that is necessary to achieve that result. In
    addition, we believe that any automatic roaming rule should be
    sufficiently flexible to permit a carrier to change its system for
    legitimate business reasons (*e.g.*, increasing capacity, spectrum
    efficiency, fraud control, or deployment of enhanced features)
    without any obligation to make its system accessible to roamers. At
    the same time it may be necessary within such a framework to adopt
    certain safeguards to ensure that a carrier takes reasonable actions
    to facilitate another carrier's efforts to achieve the capability to
    access its system. Commenters should address whether and to what
    extent a carrier should be obligated to facilitate another carrier's
    efforts to access its system. We invite comment on the possible
    design of a rule to balance these considerations, as well as on any
    other possible approaches.

31. In addition, we seek comment on whether carriers currently use any
    method to inform their subscribers about when they are roaming on
    another carrier's network and on whether the subscriber may incur
    additional charges as a result of such roaming. We invite comment on
    industry practices relating to consumer education about roaming.
    Further, we seek comment on any other issue that a commenter
    believes is important for the Commission to consider as we determine
    whether it would be in the public interest to impose an automatic
    roaming requirement on CMRS providers, including, for example, any
    concerns regarding subscriber privacy or carriers' control over
    proprietary information and whether any automatic roaming
    requirement that we adopt in this proceeding should be subject to a
    sunset provision and, if so, when such a sunset should occur.[^74]

32. Against this backdrop, below we further discuss and seek comments on
    automatic roaming agreements, issues raised by small and rural
    carriers, and technical developments.

### Roaming Agreements

33. In the *Interconnection and Resale Obligations Third NPRM* as well
    as in the *2000 CMRS Roaming NPRM*, the Commission suggested that
    one possible automatic roaming rule could require, as a condition of
    license, that covered providers that enter into roaming agreements
    with other such providers make like agreements available to
    similarly situated providers, where technically compatible handsets
    are being used, under non-discriminatory rates, terms, and
    conditions.[^75] Such a rule could prevent established carriers from
    entering into favorable agreements with selected providers while
    unreasonably denying such agreements to similarly situated
    carriers.[^76] We seek comment on whether an anti-discrimination
    approach to automatic roaming is appropriate in the current
    marketplace, or whether any other approaches should be considered.

34. To the extent that a CMRS provider engages in unreasonable and
    discriminatory behavior by refusing to enter an automatic roaming
    agreement, we also seek comment on the adequacy of remedies under
    existing law, such as the means permitted under Sections 201, 202,
    208, 251, and 332 of the Act.[^77] We seek general comment on
    whether the avenues of complaint and redress afforded by these
    sections provide sufficient and appropriate means of ensuring the
    development of automatic roaming services in a competitive CMRS
    market, or whether an automatic roaming requirement is necessary in
    order to serve the public interest.

35. Assuming that adoption of additional protections against
    discrimination is needed, we seek comment on whether an
    anti-discrimination approach to roaming should be examined on a
    nationwide or on a market-specific basis.[^78] Should any automatic
    roaming rule require a carrier to enter an automatic roaming
    arrangement on a nondiscriminatory basis with a facilities-based
    competitor in the same market ("in-market" roaming)?[^79] For
    instance, do such agreements diminish carriers' incentives for
    building out their networks? We seek comment on how an exception
    that permits carriers to deny roaming agreements to "in-market"
    competitors could be administered, given the different geographic
    scope of cellular, broadband PCS, and SMR licenses.

36. Similarly, we seek comment on whether providers should be permitted
    to offer roaming agreements to affiliates on different terms and
    conditions than to non-affiliates, or whether, instead, agreements
    favorable to affiliates constitute unreasonable, discriminatory
    behavior. We seek comment on whether it would serve the public
    interest to require carriers to make roaming service available to
    other carriers in one-way agreements under the same terms and
    conditions as under reciprocal agreements. We also request comment
    on whether a carrier should be able to offer a lower rate to a
    geographically proximate carrier. In addition, we request comment on
    to what extent, if any, an automatic roaming rule should encompass
    requirements specifically affecting resellers, and on the costs and
    benefits of any such requirements. We invite commenters to provide
    economic analysis and data supporting their positions.

37. Finally, as stated above, in the proceeding addressing the
    Sprint-Nextel merger, SouthernLINC Wireless contends that it has
    been unable to negotiate a satisfactory roaming agreement with
    Nextel because the agreement restricts its subscribers to basic
    interconnected voice roaming and denies them access to push-to-talk,
    dispatch, or data roaming services.[^80] We seek comment on whether
    such denial of access to roaming services harms competition
    or consumers and, if so, how any automatic roaming rule should be
    crafted to address the issue.  For example, should an automatic
    roaming rule require carriers to permit roaming access to all
    technical features of their systems, and/or require carriers to make
    the same features accessible to all of their roaming partners on a
    non-discriminatory basis?  We invite commenters to provide economic
    and technical analysis and data supporting their positions,
    including information on how common practices such as those alleged
    by SouthernLINC are within the industry.

### Small and Rural Carrier Concerns

38. In various Commission proceedings, small and rural wireless service
    providers have asserted that CMRS industry mergers have
    significantly reduced their nationwide roaming options.[^81] With a
    reduced number of nationwide roaming partners available, small and
    rural carriers are concerned that the remaining nationwide carriers
    will be able to use increased market power to adversely affect
    roaming negotiations in the future. These carriers contend that the
    large nationwide service providers are able to exercise market power
    through an advantageous bargaining position that affects not just
    the ability of small and rural carriers to enter into roaming
    agreements, but the terms of such agreements.[^82] Small and rural
    carriers also claim that numerous incompatible technologies further
    reduce their bargaining power.[^83]

39. Additionally, small and rural carriers assert that the amount of
    roaming traffic they exchange with other carriers has been
    significantly reduced as the large carriers enter into roaming
    agreements with other larger carriers and avoid roaming on smaller
    carriers' networks.[^84] These small carriers believe such behavior
    is indicative of a larger industry trend where the larger carriers
    have begun to favor each other to the exclusion of smaller
    competitors, ignoring high cost rural areas. These carriers state
    that a substantial portion of their revenue comes from roaming
    revenue and the loss of such revenue makes it difficult for them to
    remain viable. They assert that favorable deals between large
    carriers eliminate a vital source of revenue for small and rural
    carriers.[^85] Furthermore, small carriers contend that the large
    carriers' practice of negotiating favorable roaming deals with one
    another constitutes unreasonable discrimination in violation of
    Section 202 of the Communications Act.[^86]

40. Small and rural carriers also assert that with industry
    consolidation, large carriers behave in an anti-competitive manner
    with respect to roaming. For example, RTG contends that
    consolidation has allowed large, nationwide CMRS carriers to use
    their increased market power to demand asymmetrical roaming rates
    from small, rural carriers. In certain cases, RTG asserts, rural
    carriers must pay over five times as much to allow their customers
    to roam on nationwide carrier networks as the nationwide carriers
    pay for their customers to roam on rural networks.[^87] RTG argues
    that these asymmetrical roaming rates harm rural consumers and
    prevent small and rural carriers from offering their rural
    subscribers viable nationwide service plans that would allow rural
    subscribers to roam on nationwide carriers' networks.[^88]

41. We seek comment on the concerns raised by small and rural carriers.
    We invite commenters to submit economic analysis and data regarding
    evidence of discriminatory or non-discriminatory roaming practices
    on an industry-wide basis, and the impact of such practices on
    consumers. If roaming rates are declining among carriers, is this
    due to a more robust CMRS market or, as small and rural carriers
    claim, from the dwindling number of nationwide carriers favoring one
    another in roaming agreements to the exclusion of other carriers? We
    seek specific evidence of wireless providers denying roaming
    agreements to other providers in a manner that harms consumers. We
    also seek comment on and evidence of whether large, nationwide
    carriers are preferring one another over other carriers in roaming
    agreements, and whether such a preference is a violation of Section
    202 of the Communications Act.

42. In addition, we seek comment on whether large, nationwide carriers
    are engaging in the practice of barring their subscribers' access to
    networks operated by other carriers. If so, does this type of
    practice violate the spirit of our rule requiring carriers to
    provide roaming access by preventing subscribers from utilizing such
    a service?[^89] We seek comment on the assertion by small and rural
    carriers that large carriers are using their market power to develop
    one-sided roaming agreements, at terms more favorable to themselves.
    Should the Commission require nondiscriminatory, rather than
    one-sided, automatic roaming arrangements?[^90] In this regard,
    should large or nationwide carriers be required to make their
    networks available to all roaming partners on the same terms and
    conditions as they offer to their "most- favored" roaming partners.
    Finally, we seek comment on whether large, nationwide carriers
    control "bottleneck" facilities that impact the ability of customers
    to roam onto or off of small and rural wireless networks.

43. We also seek comment on whether the concerns raised by small and
    rural carriers should be examined on a regional or local basis. We
    note that RTG has proposed "an automatic roaming mandate" that would
    only be applicable to small and "rural" markets where roaming
    partner options are at a minimum.[^91] RTG has also suggested in a
    recent *ex parte* presentation that the Commission consider a "Tier
    IV" category of CMRS providers that would consist solely of CMRS
    carriers with 100,000 customers or less.[^92] Under this proposal,
    Tier IV providers would be entitled to automatic roaming in rural
    markets with large, nationwide carriers at reasonable symmetrical
    rates as a "check" against the abuse of market power by large
    carriers where they dominate the market.[^93] We seek comment on
    RTG's proposal. Should the Commission consider an automatic roaming
    requirement specifically targeted to rural markets? If so, how
    should we define "rural" for this purpose? In the *Rural Report and
    Order*, the Commission established a baseline definition of "rural
    area" as "those counties (or equivalent) with a population density
    of 100 persons per square mile or less, based upon the most recently
    available Census data . . . ."[^94] We seek comment on whether the
    definition in the *Rural Report and Order* or any other definition
    would be appropriate for any automatic roaming obligations
    contemplated in this proceeding.

### Technical Considerations

44. *Roaming on Enhanced Digital Networks*. Another consideration in
    determining the need for and design of any automatic roaming
    requirement is the recent development by carriers of enhanced
    digital networks. Until recently, carriers' networks consisted
    primarily of second generation or "2G" digital technology, which
    provided voice and limited data service. Over the past two or three
    years, however, both large and small carriers have begun to upgrade
    their networks to 2.5G and "3G" technologies in order to provide for
    higher capacity and higher speed communications to their
    customers.[^95] If the Commission were to apply some form of
    automatic roaming requirement to 2G systems, we seek comment on
    whether it should also apply to upgraded 2.5G or 3G systems as well.

45. To upgrade their networks with additional hardware and software,
    carriers obtain financing and incur costs. A competitive market
    usually encourages carriers to incur these costs to bring the latest
    and most modern communications options to their subscribers. We seek
    comment on what impact an automatic roaming requirement would have
    on the incentive of carriers to invest in such upgrades. We also
    seek comment on whether a carrier that has upgraded its system
    should be required to enter into roaming agreements only with other
    carriers that have similarly upgraded their systems, or whether,
    alternatively, we should require a carrier with 2.5 and 3G
    capabilities to enter into automatic roaming agreements with all or
    some subset of carriers (*e.g.*, rural carriers) that employ the
    same digital technology (*e.g.,* GSM or CDMA), even if the other
    carriers have not upgraded their systems.

46. We also seek comment on the effect that automatic roaming would have
    on the capacity of 2.5 and 3G networks and the ability of carriers
    to offer full access to their own customers. We would be concerned
    if requiring a carrier to offer roaming service on its enhanced
    network to the customers of other carriers resulted in the carrier
    facing capacity constraints that adversely affect its own customers.
    We therefore ask whether a carrier should have the right to limit
    access to its network by roamers, and what parameters should be
    considered as justification for such limits. We invite commenters to
    suggest specific standards for determining when the requirement
    should or should not apply.

47. *Roaming with Multi-Mode Handsets*. Another technical consideration
    in the context of roaming is that, in order for roaming on digital
    networks to be successful, a customer must have a handset that
    employs the same digital standard (*e.g.,* GSM or CDMA) as the
    carrier on whose network the customer is roaming. Thus, a carrier
    that uses GSM would not be expected to enter into an agreement with
    a carrier that uses CDMA, because the customers of each carrier
    would not be able to access the other carrier's network. This, of
    course, limits the number of carriers in a given geographic area
    that can enter into roaming agreements. However, if, in the future,
    handsets become available that employ multiple digital technologies
    or software-defined radio capabilities, this may reduce or eliminate
    technical impediments to the subscribers of any carrier roaming on
    any other carrier's network. We seek comment as to whether and how
    soon such technology developments may occur, and if so, what effect
    the availability of multi-technology handsets will have on carriers'
    roaming options (*e.g*., if multi-technology handsets were
    available, should we require carriers using CDMA technologies to
    enter into roaming agreements with GSM carriers)?

48. *Roaming on Analog Networks*: In 2002, the Commission established
    February 18, 2008 as the sunset date for the requirement that
    cellular carriers provide analog service.[^96] In light of the
    pending sunset of the analog requirement, we seek comment on whether
    it is necessary to extend any automatic roaming obligation that we
    might adopt to analog networks. We seek comment on the extent to
    which analog systems are used in roaming today and whether there is
    a need to adopt automatic roaming for analog.

49. Also, we note that in the *Cingular-AT&T Wireless Order*, the
    Commission considered the possible effect of that merger on the
    roaming market for those wireless telephony consumers who rely on
    analog service.[^97] We seek comment on the extent to which roaming
    options will be affected once the analog requirement no longer
    exists.[^98] This information is relevant to better assess the state
    of the CMRS market and whether analog sunset will affect the market
    conditions, in the near future, in a manner that would justify
    adoption of an automatic roaming rule for digital networks.
    Commenters should comment on this change and other technical changes
    and their possible effects on the roaming markets.

# Procedural matters

## *Ex Parte* Rules \-- Permit-But-Disclose

50. This is a permit-but-disclose notice and comment rulemaking
    proceeding. *Ex parte* presentations are permitted, except during
    the Sunshine Agenda period, provided they are disclosed as provided
    in the Commission's rules.[^99]

## Initial Regulatory Flexibility Analysis

51. As required by the Regulatory Flexibility Act,[^100] the Commission
    has prepared an Initial Regulatory Flexibility Analysis (IRFA) of
    the possible significant economic impact on small entities of the
    policies and rules proposed in this document. The IRFA is set forth
    in the Appendix. Written public comments are requested on the IRFA.
    These comments must be filed in accordance with the same filing
    deadlines as comments filed in response to this Notice of Proposed
    Rulemaking as set forth below in subsection D, and have a separate
    and distinct heading designating them as responses to the IRFA.

## Initial Paperwork Reduction Act of 1995 Analysis

52. This document does not contain proposed information collection(s)
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13. In addition, therefore, it does not contain any new or
    modified "information collection burden for small business concerns
    with fewer than 25 employees," pursuant to the Small Business
    Paperwork Relief Act of 2002, Public Law 107-198.[^101]

## Comment Period and Procedures

53. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
    CFR §§ 1.415, 1.419, interested parties may file comments and reply
    comments on or before the dates indicated on the first page of this
    document. Comments may be filed using: (1) the Commission's
    Electronic Comment Filing System (ECFS), (2) the Federal
    Government's eRulemaking Portal, or (3) by filing paper
    copies.[^102]

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: \<http://www.fcc.gov/cgb/ecfs/\> or
    the Federal eRulemaking Portal: \<http://www.regulations.gov\>.
    Filers should follow the instructions provided on the website for
    submitting comments.

    -   For ECFS filers, if multiple docket or rulemaking numbers appear
        in the caption of this proceeding, filers must transmit one
        electronic copy of the comments for each docket or rulemaking
        number referenced in the caption. In completing the transmittal
        screen, filers should include their full name, U.S. 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, filers should send
        an e-mail to \<ecfs@fcc.gov\>, and include the following words
        in the body of the message, "get form." A sample form and
        directions will be sent in response.

```{=html}
<!-- -->
```
-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. If more than one docket or
    rulemaking number appears in the caption of this proceeding, filers
    must submit two additional copies for each additional docket or
    rulemaking number.

> Filings can be sent by hand or messenger delivery, by commercial
> overnight courier, or by first-class or overnight U.S. Postal Service
> mail (although we continue to experience delays in receiving U.S.
> Postal Service mail). All filings must be addressed to the
> Commission's Secretary, Office of the Secretary, Federal
> Communications Commission.

-   The Commission's contractor will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The
    filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand
    deliveries must be held together with rubber bands or fasteners. Any
    envelopes must be disposed of [before]{.underline} entering the
    building.

-   Commercial overnight mail (other than U.S. Postal Service Express
    Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
    Capitol Heights, MD 20743.

-   U.S. Postal Service first-class, Express, and Priority mail should
    be addressed to 445 12^th^ Street, SW, Washington DC 20554.

> People with Disabilities: To request materials in accessible formats
> for people with disabilities (braille, large print, electronic files,
> audio format), send an e-mail to \<fcc504@fcc.gov\> or call the
> Consumer & Governmental Affairs Bureau at 202-418-0530 (voice),
> 202-418-0432 (tty).

## Further Information

54. For further information concerning this rulemaking proceeding
    contact: Eli Johnson at (202) 418-1395, \<Eli.Johnson@fcc.gov\>, or
    Won Kim (202) 418-1368, \<Won.Kim@fcc.gov\>, Wireless
    Telecommunications Bureau, Spectrum and Competition Policy Division.

# ordering clauses

55. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 201(b),
    251(a), 253, 303(r), and 332(c)(1)(B) of the Communications Act of
    1934, as amended, 47 U.S.C. §§ 151, 154(i), 201(b), 251(a), 253,
    303(r), and 332(c)(1)(B), and sections 1.411 and 1.412 of the
    Commission's rules, 47 C.F.R. §§ 1.411 and 1.412, this Memorandum
    Opinion & Order and Notice of Proposed Rulemaking IS ADOPTED.

56. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 201(b),
    251(a), 253, 303(r) and 332(c)(1)(B) of the Communications Act of
    1934, as amended, 47 U.S.C. §§ 154(i), 251(a), 253, 303(r) and
    332(c)(1)(B), and sections 1.411 and 1.412 of the Commission's
    rules, 47 C.F.R. §§ 1.411 and 1.412, the automatic and manual
    roaming rulemaking proceeding in WT Docket No. 00-193 IS TERMINATED.

57. IT IS FURTHER ORDERED that the Petition for Commission Action filed
    by the Rural Telecommunications Group, Inc. on November 1, 2004 IS
    GRANTED, to the extent described above.

58. IT IS FURTHER ORDERED that NOTICE IS HEREBY GIVEN of the proposed
    regulatory changes described in this Notice of Proposed Rulemaking,
    and that comment is sought on these proposals.

59. IT IS FURTHER ORDERED that the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this Notice of Proposed Rulemaking, including the
    Initial Regulatory Flexibility Analysis, to the Chief Counsel for
    Advocacy of the Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

**APPENDIX**

**Initial Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),[^103] the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this Notice of Proposed Rulemaking (Notice). Written public
comments are requested on this IRFA. Comments must be identified as
responses to the IRFA and must be filed by the deadlines for comments on
the Notice provided in paragraph 53, and they must have a separate and
distinct heading designating them as responses to the IRFA. The
Commission will send a copy of the Notice, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration (SBA),
in accordance with the RFA.[^104] In addition, the Notice and IRFA (or
summaries thereof) will be published in the Federal Register.[^105]

## Need for and Objectives of the Proposed Rules

In the Memorandum Opinion and Order (MO&O) and Notice, the Commission
terminates the open proceeding relating to the automatic and manual
roaming obligations of Commercial Mobile Radio Services (CMRS) providers
in WT Docket No. 00-193, and initiates a new proceeding to examine
whether its current rules regarding roaming requirements applicable to
CMRS providers should be modified given the current state of the CMRS
market. In the MO&O portion of the item, the Commission terminates its
previous consideration of roaming issues in WT Docket No. 00-193,
primarily on the basis that the comments filed and the matters at issue
therein are now stale due to the passage of time and other regulatory
and industry changes that have occurred since its commencement. As a
result, the Commission decides to terminate the proceeding without the
adoption of rules. The Commission also decides to initiate a Notice in a
new proceeding to examine CMRS roaming in a manner that takes into
account current technological and market conditions. The Commission's
decision will allow it to develop a record with up-to-date information
regarding the state of today's CMRS marketplace in an effort to
determine whether there is a need for a regulatory regime for roaming
services.

Specifically, in the Notice, the Commission seeks to establish a record
on the current state of manual roaming and whether there is a continuing
need for a manual roaming rule. The Commission also seeks comment on
whether carriers should be required to enter into agreements to allow
automatic roaming on their networks and, if so, how such a rule should
be designed, to whom should it apply, and for what period of time.
Furthermore, the Commission requests comment on whether national
carriers are negotiating roaming agreements with small or rural carriers
in an anti-competitive manner or are simply avoiding their networks
altogether and, if so, whether the Commission should establish an
automatic roaming rule that applies to a specific market or type of
carrier and for what period of time. Finally, the Commission seeks to
establish a record on whether digital network and handset technology has
advanced enough that there are no longer technical limitations affecting
the likely provision of roaming.

## Legal Basis

The potential actions on which comment is sought in this Notice would be
authorized under sections 1, 4(i), 201(b), 251(a), 253, 303(r), and
332(c)(1)(B) of the Communications Act of 1934, as amended, 47 U.S.C. §§
151, 154(i), 201(b), 251(a), 253, 303(r), and 332(c)(1)(B).

## 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 economic impact on a substantial number of small
entities."[^106] The RFA generally defines "small entity" as having the
same meaning as the terms "small business," "small organization," and
"small governmental jurisdiction."[^107] In addition, the term "small
business" has the same meaning as the term "small business concern"
under the Small Business Act.[^108] 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 Small Business Administration (SBA).[^109]

To assist the Commission in its analysis, commenters are requested to
provide information regarding which CMRS entities would be affected by
the regulations on which the Commission seeks comment in this Notice. In
particular, we seek estimates of how many small entities might be
affected.

The possible sunset of the existing "manual" roaming rule, if adopted,
would eliminate the requirement that covered cellular, broadband PCS and
SMR carriers make service available to individual users upon request, so
long as the roamer's handset is technically capable of accessing their
services. Sunsetting of this rule would be expected to reduce the
existing regulatory burden, if any, on small businesses that must comply
with the requirements of the "manual" roaming rule.

The "automatic" roaming regulations on which the Commission seeks
comment, if adopted, would apply to providers of cellular, broadband
PCS, and SMR services that offer real-time, two-way switched voice or
data service that is interconnected with the public switched network and
utilizes an in-network switching facility that enables the provider to
reuse frequencies and accomplish seamless hand-offs of subscriber calls.

***Estimate for Cellular Licensees*.** The SBA has developed a small
business size standard for small businesses in the category "Cellular
and Other Wireless Telecommunications."[^110] Under that SBA category, a
business is small if it has 1,500 or fewer employees.[^111] According to
the Bureau of the Census, only twelve firms out of a total of 1,238
cellular and other wireless telecommunications firms operating during
1997 had 1,000 or more employees.[^112] Therefore, even if all 12 of
these firms were cellular telephone companies, nearly all cellular
carriers are small businesses under the SBA's definition.

In addition, we can assess data provided annually to the Commission by
Telecommunications Relay Service (TRS) carriers. The TRS data
compilation, published in the Commission's *Trends in Telephone
Service*, groups together cellular, personal communications services,
and specialized mobile radio telephony carriers into a single category
called "Wireless Telephony." As noted above, under the pertinent SBA
small business size standard, a wireless business is small if it has
1,500 or fewer employees.[^113] According to *Trends in Telephone
Service* data, 447 carriers have reported that they provide Wireless
Telephony.[^114] Of that total, an estimated 245 are small providers,
under the SBA size standard. Thus, we can estimate that the majority of
such businesses are small.

Additionally, any rules adopted pursuant to this rulemaking will apply
to cellular licensees only if they offer real-time, two-way switched
voice or data service that is interconnected with the public switched
network and that utilizes an in-network switching facility that enables
the provider to reuse frequencies and accomplish seamless hand-offs of
subscriber calls. Although the Commission does not have definitive
information, we estimate that most or all small business cellular
licensees offer services meeting this description.

***Estimate for Broadband PCS Licensees*.** The broadband PCS spectrum
is divided into six frequency blocks designated A through F, and the
Commission has held auctions for each block. The Commission has created
a small business size standard for Blocks C and F as an entity that has
average gross revenues of less than \$40 million in the three previous
calendar years.[^115] For Block F, an additional small business size
standard for "very small business" was added and is defined as an entity
that, together with its affiliates, has average gross revenues of not
more than \$15 million for the preceding three calendar years.[^116]
These small business size standards, in the context of broadband PCS
auctions, have been approved by the SBA.[^117] No small businesses
within the SBA-approved small business size standards bid successfully
for licenses in Blocks A and B. There were 90 winning bidders that
qualified as small entities in the Block C auctions. A total of 93
"small" and "very small" business bidders won approximately 40 percent
of the 1,479 licenses for Blocks D, E, and F.[^118] On March 23, 1999,
the Commission reauctioned 155 C, D, E, and F Block licenses; there were
113 small business winning bidders.[^119]

Any rule modifications that will be made pursuant to this proceeding
will apply to broadband PCS licensees only if they offer real-time,
two-way switched voice or data service that is interconnected with the
public switched network and that utilizes an in-network switching
facility that enables the provider to reuse frequencies and accomplish
seamless hand-offs of subscriber calls. Although the Commission does not
have definitive information, we estimate that most or all small business
broadband PCS licensees offer services meeting this description.

***Estimate for SMR Licensees.*** The Commission awards "small entity"
bidding credits in auctions for SMR geographic area licenses in the 800
MHz and 900 MHz bands to firms that had revenues of no more than \$15
million in each of the three previous calendar years.[^120] The
Commission awards "very small entity" bidding credits to firms that had
revenues of no more than \$3 million in each of the three previous
calendar years.[^121] The Commission has held auctions for geographic
area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction
began on December 5, 1995, and closed on April 15, 1996. Sixty bidders
claiming that they qualified as small businesses under the \$15 million
size standard won 263 geographic area licenses in the 900 MHz SMR band.
The 800 MHz SMR auction for the upper 200 channels began on October 28,
1997, and was completed on December 8, 1997. Ten bidders claiming that
they qualified as small businesses under the \$15 million size standard
won 38 geographic area licenses for the upper 200 channels in the 800
MHz SMR band.[^122] A second auction for the 800 MHz band was held on
January 10, 2002 and closed on January 17, 2002 and included 23 BEA
licenses. One bidder claiming small business status won five
licenses.[^123]

The auction of the 1,050 800 MHz SMR geographic area licenses for the
General Category channels began on August 16, 2000, and was completed on
September 1, 2000. Eleven bidders won 108 geographic area licenses for
the General Category channels in the 800 MHz SMR band qualified as small
businesses under the \$15 million size standard. In an auction completed
on December 5, 2000, a total of 2,800 Economic Area licenses in the
lower 80 channels of the 800 MHz SMR service were sold. Of the 22
winning bidders, 19 claimed "small business" status and won 129
licenses. Thus, combining all three auctions, 40 winning bidders for
geographic licenses in the 800 MHz SMR band claimed status as small
business.

In addition, there are numerous incumbent site-by-site SMR licensees and
licensees with extended implementation authorizations in the 800 and 900
MHz bands. We do not know how many firms provide 800 MHz or 900 MHz
geographic area SMR pursuant to extended implementation authorizations,
nor how many of these providers have annual revenues of no more than
\$15 million.[^124] One firm has over \$15 million in revenues. We
assume, for purposes of this analysis, that all of the remaining
existing extended implementation authorizations are held by small
entities, as that small business size standard is established by the
SBA.

Additionally, any rules adopted pursuant to this rulemaking will apply
to SMR licensees only if they offer real-time, two-way switched voice or
data service that is interconnected with the public switched network and
that utilizes an in-network switching facility that enables the provider
to reuse frequencies and accomplish seamless hand-offs of subscriber
calls. Although the Commission does not have definitive information, we
estimate that many small business SMR licensees do not offer services
meeting this description. Nonetheless, in the absence of definitive
information, we assume that all of the Commission's SMR licensees that
are small businesses may be subject to any rules that may be adopted in
this proceeding.

## Reporting, Recordkeeping, and Other Compliance Requirements

The Commission anticipates that any rules that may be adopted pursuant
to this Notice will impose at most only limited reporting or
recordkeeping requirements. The only compliance costs likely to be
incurred are administrative costs to ensure that an entity's practices
are in compliance with the rule. The only compliance requirement of any
possible new rules is that licensees subject to any automatic roaming
requirement (*i.e*., cellular licenses, broadband PCS licensees, and
geographic area 800 MHz and 900 MHz SMR licensees that offer real-time,
two-way, interconnected switched voice and data service) will need to
provide non-discriminatory access to their wireless systems via
automatic roaming once they reach an agreement with any carrier to
permit automatic roaming. As noted above in this IRFA and in the text of
the Notice, the Commission seeks comment on the potential costs of
implementing an automatic roaming requirement in this context, including
such potential costs on small business.[^125]

## 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.[^126]

As noted, the possible sunset of the manual roaming rule, if adopted,
would be expected to reduce any existing economic impact on small
business. Therefore, the only possible negative economic impacts that
might arise from this Notice are those what would be associated with an
"automatic" roaming rule.

However, as discussed in the Notice, small and rural wireless service
providers have requested that the Commission adopt an automatic roaming
rule in some form. Small and rural service providers assert that CMRS
industry mergers have significantly reduced their nationwide roaming
options. With a reduced number of nationwide roaming partners available,
small and rural carriers are concerned that the remaining nationwide
carriers will be able to use increased market power to adversely affect
roaming negotiations in the future. These carriers contend that the
large nationwide service providers are able to exercise market power
through an advantageous bargaining position that affects not just the
ability of small and rural carriers to enter into roaming agreements,
but the terms of such agreements. Small and rural carriers also claim
that numerous incompatible technologies further reduce their bargaining
power.

Additionally, small and rural carriers assert that the amount of roaming
traffic they exchange with other carriers has been significantly reduced
as the large carriers enter into roaming agreements with other larger
carriers and avoid roaming on smaller carriers' networks. These small
carriers believe such behavior is indicative of a larger industry trend
where the larger carriers have begun to favor each other to the
exclusion of smaller competitors, ignoring high cost rural areas. These
carriers state that a substantial portion of their revenue comes from
roaming revenue and the loss of such revenue makes it difficult for them
to remain viable. They assert that favorable deals between large
carriers eliminate a vital source of revenue for small and rural
carriers. Furthermore, small carriers contend that the large carriers'
practice of negotiating favorable roaming deals with one another
constitutes unreasonable discrimination in violation of Section 202 of
the Communications Act.

Small and rural carriers also assert that with industry consolidation,
large carriers behave in an anti-competitive manner with respect to
roaming. They contend that consolidation has allowed large, nationwide
CMRS carriers to use their increased market power to demand asymmetrical
roaming rates from small, rural carriers. In certain cases, they assert,
rural carriers must pay over five times as much to allow their customers
to roam on nationwide carrier networks as the nationwide carriers pay
for their customers to roam on rural networks. They argue that these
asymmetrical roaming rates harm rural consumers and prevent small and
rural carriers from offering their rural subscribers viable nationwide
service plans that would allow rural subscribers to roam on nationwide
carriers' networks.

As a result of these assertions, the Commission seeks comment in the
Notice on the concerns raised by small and rural carriers. The
Commission asks commenters to submit economic analysis and data
regarding evidence of discriminatory or non-discriminatory roaming
practices on an industry-wide basis, and the impact of such practices on
consumers. The Commission requests information on whether roaming rates
are declining among carriers, and, if so, whether this is due to a more
robust CMRS market or, as small and rural carriers claim, from the
dwindling number of nationwide carriers favoring one another in roaming
agreements to the exclusion of other carriers. The Commission seeks
specific evidence of wireless providers denying roaming agreements to
other providers in a manner that harms the providers or consumers. The
Notice also seeks comment on and evidence of whether large, nationwide
carriers are preferring one another over other carriers in roaming
agreements, and whether such a preference is a violation of Section 202
of the Communications Act.

In addition, the Commission seeks comment on whether large, nationwide
carriers are engaging in the practice of barring their subscribers'
access to networks operated by other carriers. If so, the Commission
asks, does this type of practice violate the spirit of its rule
requiring carriers to provide roaming access by preventing subscribers
from utilizing such a service? The Commission seeks comment on the
assertion by small and rural carriers that large carriers are using
their market power to develop one-sided roaming agreements, at terms
more favorable to themselves. The Notice asks whether the Commission
should require nondiscriminatory, rather than one-sided, automatic
roaming arrangements. In this regard, the Notice asks whether large or
nationwide carriers should be required to make their networks available
to all roaming partners on the same terms and conditions as they offer
to their "most- favored" roaming partners. Moreover, the Commission
seeks comment on whether large, nationwide carriers control "bottleneck"
facilities that impact the ability of customers to roam onto or off of
small and rural wireless networks. Finally, the Commission also seeks
comment on whether the concerns raised by small and rural carriers
should be examined on a regional or local basis.

The Commission will draw on the information gained from comments filed
in response to the Notice when considering whether an automatic roaming
rule should be promulgated, and if so, how it can best be drafted to
minimize any costs placed on small businesses. For instance, the
Commission asks whether the alternative of an exemption tailored for
small business would be appropriate given the possible costs of an
automatic roaming rule.[^127]

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

None.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re: Reexamination of Roaming Obligations of Commercial Mobile Radio
Service Providers; WT Docket No. 05-265*

Consumers are using wireless phones more than ever. As we travel around
town or around the country, we increasingly rely on wireless phones to
stay connected with family, friends and colleagues. Sometimes we are
assessed roaming charges to do so. Today we begin to explore the impact
roaming charges have on the prices and services that we consumers
get---and whether more rules are needed for roaming. We have expressly
asked questions about the effects of roaming on consumers and the prices
we pay; the practices that carriers use to inform us when we are
roaming; the particular roaming experiences of rural consumers and
carriers; and the treatment of data services as well as voice in the
roaming context. I am grateful to my colleagues for their work in
improving this item, and look forward to a full record on these issues.
As we examine our regulatory approach to roaming, we should stay focused
on the interests of consumers, especially those living in rural America.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Reexamination of Roaming Obligations of Commercial Mobile Radio
Service Providers; WT Docket No. 05-265*

Concerns about roaming have become more and more widespread over the
past several years. Whether in the context of recent mergers or other
rulemakings, we are hearing regularly from small and mid-size carriers
who are becoming increasingly frustrated with their inability to
negotiate automatic roaming agreements with larger regional and
nationwide carriers for the full range of CMRS services. Not
surprisingly, consolidation in the wireless industry over the past 12
months has only served to amplify existing concerns about the current
state of roaming practices.

So I am very pleased we are initiating a proceeding that will explore
all aspects of the issue of roaming and more specifically the effects of
consolidation on the ability of smaller carriers to negotiate access to
larger networks. While CMRS providers are subject to the common carrier
provisions of Title II of the Act, including Sections 201 and 202, I
support the item's request for comment on whether existing remedies
under these provisions of the law have been sufficient to ensure the
continued development of automatic roaming services.

I strongly encourage interested parties to provide as full and complete
a record as possible in this proceeding. Unfortunately, it can sometimes
be difficult to determine where the lines are between reasonable
business practices and unreasonable discrimination, and we need to hear
from industry on where these lines may fall. Parties concerned about
roaming practices should supply us with as much detail as they can so
that we truly are informed about the current status of roaming in the
wireless industry.

Finally, I want to thank the Chairman and the Wireless
Telecommunications Bureau for initiating this new proceeding so quickly.
I was willing to delay a discussion of roaming issues in the context of
recent mergers provided that we committed to get an industry-wide
proceeding launched quickly. I fully support our item today because it
responds to my concerns and is a positive and timely step forward to
considering this important issue.

[^1]: *See* Automatic and Manual Roaming Obligations Pertaining to
    Commercial Mobile Radio Services, WT Docket No. 00-193, *Notice of
    Proposed Rulemaking*, 15 FCC Rcd 21628 (2000) ("*2000 CMRS Roaming
    NPRM*").

[^2]: *See 2000 CMRS Roaming NPRM*, 15 FCC Rcd at 21629 ¶ 2;
    Interconnection and Resale Obligations Pertaining to Commercial
    Mobile Radio Services, CC Docket No. 94-54, *Second Report and
    Order* *and* *Third Notice of Proposed Rulemaking*, 11 FCC Rcd 9462,
    9464 ¶ 3 (1996) ("*Interconnection and Resale Obligations* *Second
    Report and Order*" and "*Interconnection and Resale Obligations*
    *Third NPRM*," respectively). Section 22.99 of the Commission's
    rules describes a "roamer" as "\[a\] mobile station receiving
    service from a station or system in the Public Mobile Services other
    than one to which it is a subscriber." 47 C.F.R. § 22.99.

[^3]: *See 2000 CMRS Roaming NPRM*, 15 FCC Rcd at 21629 ¶ 2;
    *Interconnection and Resale Obligations Second Report and Order*, 11
    FCC Rcd at 9466 ¶ 7.

[^4]: *See* *Interconnection and Resale Obligations* *Second Report and
    Order*, 11 FCC Rcd at 9463-71 ¶¶ 1-14. *See also* 47 C.F.R. § 20.15.
    Section 332(c)(1) of the Act provides that a person engaged in the
    provision of a service that is a commercial mobile service shall be
    treated as a common carrier for purposes of the Act. *See* 47 U.S.C.
    § 332(c)(1).

[^5]: Under Section 201(a) of the Act, common carriers must provide
    service "upon reasonable request," and the Commission has authority
    to order interconnection among carriers. *See* 47 U.S.C. § 201(a).
    Section 201(b) requires that all charges, practices,
    classifications, and regulations for common carrier service be just
    and reasonable and provides that any charge, practice,
    classification, and regulation that is unjust and unreasonable is
    unlawful. *See* 47 U.S.C. § 201(b). Section 202(a) prohibits unjust
    or unreasonable discrimination in charges, practices,
    classifications, and services by common carriers in connection with
    any "like" communications service and also prohibits undue or
    unreasonable preferences or advantages. *See* 47 U.S.C. § 202(a).
    Section 208 provides that complaints may be filed with the
    Commission against common carriers subject to the Act. *See* 47
    U.S.C. § 208.

[^6]: In this connection, manual roaming is the only form of roaming
    that is available when there is no pre-existing contractual
    relationship between a subscriber, or her home system, and the
    system on which she wants to roam.

[^7]: *Interconnection and Resale Obligations Second Report and Order*,
    11 FCC Rcd at 9465 ¶ 5. We are aware of at least two ways manual
    roaming is conducted. In its simplest form, a host system uses
    information sent by the roaming mobile unit during call setup to
    determine whether the unit is a subscriber in the market and, if
    not, routes the call to a third party for operator assistance,
    payment arrangements, and completing the call. In a more complex
    form, the host system uses the information to identify the unit's
    home carrier and determine whether that carrier has a roaming
    agreement in place with the host carrier. If no agreement exists,
    the host carrier routes the call to a third party as described
    above. In both cases, roaming can only occur if the unit is
    technologically compatible with the host system.

[^8]: This form of roaming is sometimes referred to as "seamless"
    roaming. However, some parties understand "seamless" roaming to
    include handoff of calls in progress as one moves from the service
    area of one provider to another. For the sake of clarity, we use the
    term "automatic" roaming to refer to origination and termination of
    calls without the need for any special facilitating action by the
    subscriber.

[^9]: Before a subscriber can complete an originating call under an
    automatic roaming arrangement, the host system first identifies the
    subscriber's home carrier by means of the subscriber's Mobile
    Identification Number, verifies that it has an automatic roaming
    arrangement with that carrier, and queries the home carrier to
    verify that the subscriber's account is current (and in some
    instances to obtain information about the subscriber, such as his or
    her preferred service features). *See 2000 CMRS Roaming NPRM*, 15
    FCC Rcd at 21629-30 ¶ 4; *Interconnection and Resale Obligations
    Second Report and Order*, 11 FCC Rcd at 9465-66 ¶ 6.

[^10]: *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 (1981) (adopting requirement in then Section 22.911(b) of
    the Commission's rules that base stations render service to properly
    licensed roamers).

[^11]: *See* 47 C.F.R. § 22.901 (1995); 47 C.F.R. § 22.911(b) (1981).

[^12]: *See Interconnection and Resale Obligations Second Report and
    Order*, 11 FCC Rcd at 9471 ¶ 13; 47 C.F.R. § 20.12. Section 20.12(c)
    provides as follows: "Roaming. Each carrier subject to this section
    must provide mobile radio service upon request to all subscribers in
    good standing to the services of any carrier subject to this
    section, including roamers, while such subscribers are located
    within any portion of the licensee's licensed service area where
    facilities have been constructed and service to subscribers has
    commenced, if such subscribers are using mobile equipment that is
    technically compatible with the licensee's base stations."

[^13]: *Interconnection and Resale Obligations Second Report and Order*,
    11 FCC Rcd at 9464 ¶ 2, 9468-70 ¶¶ 10-11.

[^14]: *Id*. at 9469-70 ¶ 11.

[^15]: *Id*. at 9471 ¶ 13.

[^16]: *Interconnection and Resale Obligations Third NPRM*, 11 FCC Rcd
    at 9479 ¶ 32. The last group of initial licenses for broadband PCS
    spectrum was awarded on November 24, 1997. Thus, the hypothetical
    sunset date discussed in the *Interconnection and Resale Obligations
    Third NPRM* would have fallen on November 24, 2002. *See* *2000 CMRS
    Roaming NPRM*, 15 FCC Rcd at 21631 n.15.

[^17]: *See* Interconnection and Resale Obligations Pertaining to
    Commercial Mobile Radio Services, CC Docket No. 94-54, *Third Report
    and Order and Memorandum Opinion and Order on Reconsideration*, 15
    FCC Rcd 15975, 15979-81 ¶¶ 13-19 (2000)("*Manual Roaming Order on
    Reconsideration*").

[^18]: *See id.* at 15981-83 ¶¶ 18, 22-24.

[^19]: *2000 CMRS Roaming NPRM*, 15 FCC Rcd at 21634 ¶ 15 (citing
    *Interconnection and Resale Obligations Second Report and Order*, 11
    FCC Rcd at 9467 ¶ 8).

[^20]: *Id*. at 21635 ¶ 16.

[^21]: *Id.* at 21639 ¶ 32, *citing* *Interconnection and Resale
    Obligations Third NPRM*, 11 FCC Rcd at 9479 ¶ 32. *See also 2000
    CMRS Roaming NPRM*, 15 FCC Rcd at 21642, app. (Initial Regulatory
    Flexibility Analysis).

[^22]: *Id.* at 21639 ¶ 32.

[^23]: *See* Petition for Commission Action of the Rural
    Telecommunications Group, Inc. (RTG), WT Docket No. 00-193, filed
    Nov. 1, 2004 ("RTG Petition").

[^24]: *See* RTG, WT Docket No. 00-193, *Ex Parte*, filed June 28, 2005.

[^25]: Leap Wireless International, Inc. (Leap Wireless), WT Docket No.
    00-193, *Ex Parte*, filed July 12, 2005; *See also* Leap Wireless
    *Ex Parte*, filed August 17, 2005.

[^26]: *See* Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, Annual Report and Analysis of
    Competitive Market Conditions with Respect to Commercial Mobile
    Services, WT Docket No. 04-111, *Ninth Report*, 19 FCC Rcd 20597,
    20691, Appendix A, Table 1, at A-2 (2004) ("*Ninth Annual CMRS
    Competition Report*").

[^27]: *See* *id. at* 20668 ¶ 174.

[^28]: *Id.*

[^29]: *See* *id*. at 20660 ¶ 155.

[^30]: *See* *id*. at 20700, at Appendix A, Table 9, at A-11.

[^31]: *See id.* at 20700, Appendix A, Table 10, at A-11.

[^32]: *See id.* at 20698, Appendix A, Table 5, at A-9.

[^33]: *See* *id*. at 20650-53 ¶¶ 130-35.

[^34]: *See* paras. 44-47, *infra*.

[^35]: *See Ninth Annual CMRS Competition Report*, 19 FCC Rcd at
    20622-30 ¶¶ 64-79.

[^36]: Application of AT&T Wireless Services, Inc. and Cingular Wireless
    Corporation, WT Docket No. 04-70, *Memorandum Opinion and Order*, 19
    FCC Rcd 21522 (2004) ("*Cingular-AT&T Wireless Order*").

[^37]: *Id*. at 21588 ¶ 173.

[^38]: *Id*. at 21590 ¶ 177.

[^39]: Petition to Deny of Lamar County Cellular, WT Docket No. 05-50,
    filed Mar. 9, 2005, at 8-9 ("Lamar Petition"); Comments in
    Opposition of Rural Telecommunications Group, Inc., WT Docket No.
    05-50, filed Mar. 9, 2005, at 2, 8-9 ("RTG Comments in Opposition").

[^40]: RTG Comments in Opposition, WT Docket No. 05-50, at 8-9.

[^41]: Lamar Petition, WT Docket No. 05-50, at 9; RTG Comments in
    Opposition, WT Docket No. 05-50, at 9.

[^42]: RTG Petition, WT Docket No. 05-50, at 9.

[^43]: Lamar Petition, WT Docket No. 05-50, at 9; RTG Comments in
    Opposition, WT Docket No. 05-50, at 8; *see also* Comments of United
    States Cellular Corporation, WT Docket No. 05-50, filed Mar. 9,
    2005, at 3 ("USCC Comments").

[^44]: USCC Comments, WT Docket No. 05-50, at 3.

[^45]: NY3G Partnership, a Multichannel Multipoint Distribution System
    (MMDS) licensee, filed a petition to deny in which it contended
    that, if the Commission otherwise found the proposed merger in the
    public interest, then the Commission should impose conditions on the
    merged entity that would require the merged entity to engage in good
    faith negotiations towards entering into automatic roaming
    agreements. NY3G Partnership Comments, WT Docket No. 05-63, filed
    Mar. 30, 2005, at 3. Also, NY3G Partnership appeared to argue that,
    if the Commission otherwise found the proposed merger in the public
    interest, the Commission should impose roaming conditions. *See id*.
    at 4.

[^46]: USCC and Rural Cellular Association (RCA) urged the Commission to
    use this merger review proceeding to adopt policies requiring large
    nationwide carriers to enter into reasonable, reciprocal, roaming
    agreements with small, mid-size, regional carriers. USCC Comments,
    WT Docket No. 05-63, filed Mar. 30, 2005, at 1-2, 5; RCA Comments,
    WT Docket No. 05-63, filed Mar. 30, 2005, at 2-5.

[^47]: SouthernLINC Wireless Reply Comments, WT Docket No. 05-63, filed
    Apr. 18, 2005, at 5-6.

[^48]: *Id*. at 6.

[^49]: Application of Western Wireless Corporation and ALLTEL
    Corporation, WT Docket No. 05-50, *Memorandum Opinion and Order*,
    FCC 05-138 at ¶¶ 99-109 (rel. July 19, 2005) ("*ALLTEL-WWC Order*");
    Applications of Nextel Communications, Inc. and Sprint Corporation,
    WT Docket No. 05-63, *Memorandum Opinion and Order*, FCC 05-148
    (rel. Aug. 8, 2005) ("*Sprint-Nextel* *Order*").

[^50]: *ALLTEL-WWC Order* at ¶ 108; *Sprint-Nextel Order* at ¶ 127.

[^51]: *ALLTEL-WWC Order* at ¶ 108; *Sprint-Nextel Order* at ¶ 127.

[^52]: *ALLTEL-WWC Order* at ¶ 108; *Sprint-Nextel Order* at ¶ 127.

[^53]: *ALLTEL-WWC Order* at ¶ 109; *Sprint-Nextel Order* at ¶ 128.

[^54]: *See* WT Docket No. 05-71 (*Tenth Annual CMRS Competition
    Report*): Leaco Rural Telephone Cooperative, Inc. Comments, filed
    Mar. 28, 2005; Public Service Communications Comments, filed Mar.
    28, 2005; Arctic Slope Telephone Association Cooperative, Inc.
    Comments, filed Mar. 28, 2005; Mid-Tex Cellular, Ltd Comments, filed
    Mar. 28, 2005; Great Lakes of Iowa, Inc Comments, filed Mar. 28,
    2005.

[^55]: *Id*.

[^56]: *See*, *e.g*., RTG, WT Docket No. 00-193, *Ex Parte*, filed June
    28, 2005; Leap Wireless, WT Docket No. 00-193, *Ex Parte*, filed
    July 12, 2005.

[^57]: *See* RTG Petition, WT Docket No. 00-193.

[^58]: RTG Petition, WT Docket No. 00-193, at 1-2. RTG suggests that
    market consolidation has created a "virtual duopoly" over each
    digital CMRS platform and notes that competitive roaming issues
    should be thoroughly examined on a nationwide and market-specific
    basis. *Id*. at 2.

[^59]: *Interconnection and Resale Obligations Second Report and Order*,
    11 FCC Rcd at 9470-71 ¶ 13, as affirmed in the *Manual Roaming Order
    on Reconsideration*, 15 FCC Rcd at 15976 ¶ 2, 15977-82 ¶¶ 6-21.

[^60]: *See Cingular-AT&T Wireless Order*, 19 FCC Rcd at 21592 ¶ 182;
    *ALLTEL-WWC Order*, FCC 05-138 at ¶ 108; *Sprint-Nextel Order*, FCC
    05-148 at ¶ 127.

[^61]: *Interconnection and Resale Obligations Second Report and Order*,
    11 FCC Rcd at 9479 ¶ 32.

[^62]: *Interconnection and Resale Obligations Third NPRM*, 11 FCC Rcd
    at 9471-72 ¶¶ 15-16.

[^63]: *2000 CMRS Roaming NPRM*, 15 FCC Rcd at 21635-36 ¶ 18.

[^64]: *Id.*

[^65]: In WT Docket No. 00-193, Cingular argued that if the Commission
    were to adopt an automatic roaming requirement, the rule should
    require CMRS licensees to provide automatic roaming only to other
    facilities-based CMRS providers. *See* Cingular Comments at 11. Leap
    Wireless argued that its Cricket fixed-fee service plan, which
    offers unlimited local airtime with no roaming, is fundamentally
    incompatible with the imposition of an automatic roaming rule. *See*
    Leap Wireless Comments at 5-7.

[^66]: *See, e.g.,* WT Docket No. 00-193: Nextel Comments at 2-4;
    Cingular Comments at 2-4, 6; Cellular Telecommunications & Internet
    Association ("CTIA") Comments at 2, 8; Qwest Corporation ("Qwest")
    Reply Comments at 3; National Telecommunications Cooperative
    Association ("NTCA") Comments at 4; RCA Comments at 3-4; Leap
    Wireless Comments at 4.

[^67]: *See, e.g.,* WT Docket No. 00-193: CTIA Comments at 2; Qwest
    Reply Comments at 3; NTCA Comments at 4; Leap Wireless Comments at
    4.

[^68]: *See, e.g.,* WT Docket No. 00-193: Verizon Wireless Comments at
    7-8; Nextel Comments at 2; Nextel Reply Comments at 2; RCA Comments
    at 3-4; USCC Comments at 1, 5; Leap Wireless Comments at 2, 7-8.

[^69]: *See, e.g.,* WT Docket No. 00-193: CTIA Comments at 6-7; Nextel
    Comments at 8; Cingular Comments at 7. Cingular alleged that
    cellular and PCS carriers compete on the basis of coverage, rates,
    features, and roaming footprints and that PCS carriers want to use
    the automatic roaming rule to avoid the costs of build-out in rural
    areas where cellular carriers have already built out and eliminate
    coverage and roaming footprints as competitive factors vis-à-vis
    cellular carriers. Cingular Comments at 7-8. Thus, Cingular urged,
    an automatic roaming requirement would be a disincentive for certain
    carriers to build out since those carriers could rely on the
    superior coverage of their competitors. Cingular Comments at 9.

[^70]: *See, e.g.,* WT Docket No. 00-193: Corr Comments at 3-5;
    VoiceStream Reply Comments at 1, 3; Western Wireless Reply Comments
    at 2-3, 5; SLO Cellular Reply Comments at 1, 3; Southern Reply
    Comments at 4. *See* Pacific Wireless Technologies, Inc. ("Pacific")
    Comments at 2-3, 5-6; Pacific Reply Comments at 3.

[^71]: *See, e.g.,* WT Docket No. 00-193: NTCA Comments at 3-4; USCC
    Comments at 1-2, 7-8; USCC Reply Comments at 6-8; RCA Comments at
    5-6; Sprint Comments at 1, 8-10; Sprint Reply Comments at 1.

[^72]: *See* paras. 13-15, *supra*. *See also* paras. 17, *supra* and
    38-43, *infra*.

[^73]: *See Interconnection and Resale Obligations Third NPRM*, 11 FCC
    Rcd at 9470 ¶ 13.

[^74]: We note that when issuing the *Interconnection and Resale
    Obligations Third NPRM* in 1996, the Commission tentatively
    concluded that any roaming rule adopted, whether manual or
    automatic, should apply only for a transitional period. *See
    Interconnection and Resale Obligations Second Report and Order*, 11
    FCC Rcd at 9479 ¶ 32.

[^75]: *Interconnection and Resale Obligations Third NPRM*, 11 FCC Rcd
    at 9475 ¶ 22.

[^76]: Several commenters in CC Docket No. 94-54 contended that, given
    the complex factors that are part of negotiations and determine the
    nature of any particular automatic roaming arrangement between any
    two carriers, carriers are rarely (if ever) "similarly situated."
    *See, e.g.*, CTIA *Interconnection and Resale Obligations Third
    NPRM* Comments at 15 and Reply Comments at 5-7; Rural Cellular
    Association (RCA) *Interconnection and Resale Obligations Third
    NPRM* Comments at 4.

[^77]: Several commenters in CC Docket No. 94-54 contended that existing
    remedies were sufficient. *See, e.g.*, Bell Atlantic
    *Interconnection and Resale Obligations Third NPRM* Comments at 7-8;
    RTG *Interconnection and Resale Obligations Third NPRM* Comments at
    4.

[^78]: *See* RTG, WT Docket No. 00-193, *Ex Parte*, filed Feb. 9, 2005,
    at 2.

[^79]: Several commenters in CC Docket No. 94-54 argued in favor of such
    a requirement. *See, e.g.*, AT&T Wireless *Public Notice* Comments
    at 6-8, 10 and Reply Comments at 5; Sprint Spectrum, L.P. d/b/a
    Sprint PCS *Public Notice* Comments at 2, 5-7. Others opposed such a
    requirement. *See, e.g.*, BellSouth Corporation *Public Notice*
    Reply Comments at 5-6; Centennial Cellular Corporation *Public
    Notice* Reply Comments at 4-5.

[^80]: SouthernLINC Wireless Reply Comments, WT Docket No. 05-63, at
    5-6. *See* *also* ¶ 15, *supra*.

[^81]: *See, e.g*., WT Docket No. 05-71 (*Tenth Annual CMRS Competition
    Report*): Leaco Rural Telephone Cooperative, Inc. Comments, filed
    Mar. 28, 2005; Public Service Communications Comments, filed Mar.
    28, 2005; Arctic Slope Telephone Association Cooperative, Inc.
    Comments, filed Mar. 28, 2005; Mid-Tex Cellular, Ltd Comments, filed
    Mar. 28, 2005; Great Lakes of Iowa, Inc Comments, filed Mar. 28,
    2005; RTG Petition, WT Docket No. 00-193, filed Nov. 1, 2004.

[^82]: *See* WT Docket No. 00-193: NTCA Comments at 4-6; SLO Cellular
    Reply Comments at 2; Corr Comments at 3-4, 7; Western Wireless Reply
    Comments at 5-7; RCA Comments at 5. For example, although opposed to
    an automatic roaming rule, NTCA contended in its 2001comments that
    rural carriers pay more for their customers to roam in urban areas
    than the large carriers pay for their subscribers to roam in rural
    areas because of relative demand, *i.e*., the ability to roam in the
    rural areas is less valuable to urban customers than the ability to
    roam in the urban areas is to rural customers. As a result, NTCA
    argued, small carriers lack the leverage to negotiate better roaming
    terms since they would lose subscribers without a roaming agreement.
    *See* NTCA Comments at 6. Other alleged types of anti-competitive
    behavior by large carriers included failure to respond to a request
    to initiate roaming negotiations, refusal to enter an agreement
    unless the large carrier's customers receive discriminatory,
    favorable treatment, and offering discriminatory rates to rural
    carriers. *See* NTCA Comments at 6; RCA Comments at 5; VoiceStream
    Reply Comments at 3; Corr Comments at 3-4, 7.

[^83]: *See* WT Docket No. 00-193: Western Wireless Reply Comments at
    4-5; SLO Cellular Reply Comments at 2, 4.

[^84]: *See* WT Docket No. 05-71 (*Tenth Annual CMRS Competition
    Report*): Leaco Rural Telephone Cooperative, Inc. Comments, filed
    Mar. 28, 2005; Public Service Communications Comments, filed Mar.
    28, 2005; Arctic Slope Telephone Association Cooperative, Inc.
    Comments, filed Mar. 28, 2005; Mid-Tex Cellular, Ltd Comments, filed
    Mar. 28, 2005; Great Lakes of Iowa, Inc Comments, filed Mar. 28,
    2005.

[^85]: *Id*.

[^86]: *Id*.

[^87]: *See* RTG, WT Docket No. 00-193, *Ex Parte*, filed June 28, 2005.

[^88]: *Id*. *See also* Leap Wireless, WT Docket No. 00-193, *Ex Parte*,
    filed July 12, 2005.

[^89]: *See* 47 C.F.R. § 20.12(c). We note that the Commission imposed
    merger conditions prohibiting this practice. *See Cingular-AT&T
    Wireless Order*, 19 FCC Rcd at 21592 ¶ 182; *see also ALLTEL-WWC*
    *Order*, FCC 05-138 at ¶ 108; *Sprint-Nextel Order*, FCC 05-148 at ¶
    127.

[^90]: *See* paras*.* 33-36, *supra.*

[^91]: RTG, WT Docket No. 00-193, *Ex Parte*, filed June 28, 2005, at 1.

[^92]: *Id*.

[^93]: *Id.*

[^94]: *See* Facilitating the Provisions of Spectrum-Based Services to
    Rural Areas and Promoting Opportunities for Rural Telephone
    Companies to Provide Spectrum-Based Services, WT Docket No. 02-381,
    *Report and Order and Further Notice of Proposed Rulemaking*, 19 FCC
    Rcd 19078, 19087 at ¶ 11 (2004).

[^95]: In addition to providing more voice calling capacity, such
    upgrades enable carriers to provide various services, such as text
    messaging, Internet downloads, video transmissions, and e-mail
    communications. The GSM carriers are upgrading their networks to
    include General Packet Radio Services (GPRS) and Enhanced Data Rates
    for GSM Evolution (EDGE) technologies, and CDMA carriers are
    upgrading their networks to include CDMA2000 1xRTT technology. In
    the future, GSM carries will employ Wideband CDMA and CDMA carriers
    will employ Evolution Data Only (EV-DO) and Evolution-Data and Voice
    (EV-DV) systems to provide even greater enhancements to their
    networks. *See Ninth Annual CMRS Competition Report*, 19 FCC Rcd at
    20650 ¶¶ 128-29.

[^96]: In 2002, the Commission found that it was in the public interest
    to no longer require carriers to continue to provide analog service
    after February 18, 2008. *See* 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, *Report and
    Order*, WT Docket No. 01-108, 18 FCC Rcd 490 ¶ 22 (2002) ("*2000
    Biennial Review R & O*"). The 5-year sunset period is based on the
    publication of the *2000 Biennial Review R & O* in the Federal
    Register. *See* Public Mobile Services and Personal Communications
    Services, WT Docket No. 01-108, Final Rule, 67 Fed Reg 77175-01
    (Dec. 17, 2002); *see also* 47 C.F.R. § 22.901(b).

[^97]: *Cingular-AT&T Wireless Order*, 19 FCC Rcd at 21590 ¶ 178; *see
    also ALLTEL-WWC Order*, FCC 05-138 at ¶ 104.

[^98]: For example, a small cellular GSM carrier might now enter into a
    roaming agreement with a nationwide cellular CDMA carrier operating
    in its area because both provide analog service. However, when the
    analog requirement terminates, the nationwide carrier would only be
    able to enter into a roaming agreement with a small CDMA carrier in
    the area -- if one exists -- and the GSM carrier would only be able
    to have a roaming agreement with a nationwide GSM carrier -- if one
    exists in the area.

[^99]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, and 1.2306(a).

[^100]: *See* 5 U.S.C. § 603.

[^101]: *See* 44 U.S.C. 3506(c)(4).

[^102]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    63 FR 24121 (1998).

[^103]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Contract With America Advancement Act of 1996,
    Pub. L. No. 1045-121, 110 Stat. 847 (1996) (CWAAA). Title II of the
    CWAAA is the Small Business Regulatory Enforcement Fairness Act of
    1996 (SBREFA).

[^104]: *See* 5 U.S.C. § 603(a).

[^105]: *Id.*

[^106]: 5 U.S.C. § 605(b).

[^107]: ^?^ 5 U.S.C. § 601(6).

[^108]: ^ ?^ 5 U.S.C. § 601(3) (incorporating by reference the
    definition of "small business concern" in Small Business Act, 15
    U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), 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."

[^109]: ^ ?^ Small Business Act, 15 U.S.C. § 632.

[^110]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517212.

[^111]: *Id*.

[^112]: U.S. Census Bureau, 1997 Economic Census, Information -- Subject
    Series, Establishment and Firm Size, Table 5 (Employment Size of
    Firms Subject to Federal Income Tax), NAICS code 517212 (2002). The
    Census Bureau will be issuing 2002 Economic Census data relating to
    telecommunications entities in late 2004.

[^113]: 13 C.F.R. § 121.201, NAICS code 517212.

[^114]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    page 5-5 (May 2004). This source uses data that are current as of
    October 22, 2003.

[^115]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824, 7850-7852
    ¶¶ 57-60 (1996); *see also* 47 C.F.R. § 24.720(b).

[^116]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824, 7852
    ¶ 60.

[^117]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^118]: FCC News, "Broadband PCS, D, E and F Block Auction Closes," No.
    71744 (rel. January 14, 1997).

[^119]: *See* "C, D, E, and F Block Broadband PCS Auction Closes,"
    *Public Notice*, 14 FCC Rcd 6688 (WTB 1999).

[^120]: 47 C.F.R. § 90.814(b)(1).

[^121]: *Id*.

[^122]: *See* "Correction to Public Notice DA 96-586 'FCC Announces
    Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz
    SMR in Major Trading Areas,'" *Public Notice*, 18 FCC Rcd 18367 (WTB
    1996).

[^123]: *See* "Multi-Radio Service Auction Closes," *Public Notice*, 17
    FCC Rcd 1446 (WTB 2002).

[^124]: These incumbent entities, which were not subject to auctions,
    may also be assessed under the SBA's generic small business size
    standard for this category which is 1,500 or few employees.

[^125]: *See* Notice at ¶¶ 28, 38-43.

[^126]: 5 U.S.C. § 603(c).

[^127]: *See* Notice at ¶ 28.