Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | WT Docket No. 00-193         |
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**NOTICE OF PROPOSED RULEMAKING**

**Adopted:** October 4, 2000 **Released:** November 1, 2000

**Comment Date:** January 5, 2001

**Reply Date:** February 5, 2001

By the Commission:

**TABLE OF CONTENTS**

+-------------------------------------------+--------------------------+
|                                           | [Paragraph]{.underline}  |
+-------------------------------------------+--------------------------+
| I.  INTRODUCTION                          | 1                        |
+-------------------------------------------+--------------------------+
| II. BACKGROUND                            | 2                        |
+-------------------------------------------+--------------------------+
| A.  Roaming                               | 2                        |
+-------------------------------------------+--------------------------+
| B.  Current Requirements                  | 5                        |
+-------------------------------------------+--------------------------+
| C.  Current State of Marketplace          | 8                        |
+-------------------------------------------+--------------------------+
| III\. NOTICE OF PROPOSED RULEMAKING       | 14                       |
+-------------------------------------------+--------------------------+
| A.  Automatic Roaming                     | 17                       |
+-------------------------------------------+--------------------------+
| B.  Manual Roaming                        | 30                       |
+-------------------------------------------+--------------------------+
| C.  Sunset of Roaming Rule(s)             | 32                       |
+-------------------------------------------+--------------------------+
| IV\. PROCEDURAL MATTERS                   | 33                       |
+-------------------------------------------+--------------------------+
| A.  Regulatory Flexibility Act            | 33                       |
+-------------------------------------------+--------------------------+
| B.  *Ex Parte* Rules                      | 34                       |
+-------------------------------------------+--------------------------+
| C.  Filing Procedures                     | 35                       |
+-------------------------------------------+--------------------------+
| D.  Further Information                   | 40                       |
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| V. ORDERING CLAUSES                       | 41                       |
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| Appendix -- Initial Regulatory            |                          |
| Flexibility Analysis                      |                          |
+-------------------------------------------+--------------------------+

# INTRODUCTION

1.  In this notice of proposed rulemaking (NPRM), we initiate a new
    proceeding to consider whether the Commission should adopt an
    "automatic" roaming rule that would apply to Commercial Mobile Radio
    Service (CMRS) systems and whether we should sunset the "manual"
    roaming requirement that currently applies to those systems.[^1] We
    recently terminated our previous consideration of these roaming
    issues under CC Docket No. 94-54, a long-standing proceeding.[^2] In
    light of the significant growth and development during the last few
    years of CMRS services provided by cellular, broadband Personal
    Communications Service (PCS), and Specialized Mobile Radio (SMR)
    systems, and given recent advancements in CMRS technologies, we
    believe that a new docket dedicated solely to roaming issues best
    ensures that we will have up-to-date, pertinent information as we
    consider whether, given the state of today's marketplace, there is a
    need for a regulatory regime for roaming services.

# Background

**A. Roaming**

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.[^3] Roaming service can be provided through a
    variety of technical and contractual arrangements. The basic
    technical requirement for either "manual" or "automatic" roaming is
    that the subscriber have a handset technically capable of accessing
    the roamed-on ("host") system.[^4]

3.  "Manual" roaming is the most rudimentary form of roaming. It 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. In order to make or
    receive a call, a manual roamer must establish such a relationship
    with the host carrier. Typically, the manual roamer accomplishes
    this in the course of attempting to originate a call by giving a
    valid credit card number to the carrier providing service.[^5]

4.  "Automatic" roaming means that the roaming subscriber is able to
    originate or terminate a call without taking action other than
    turning on her telephone.[^6] This form of roaming requires a
    contractual agreement between the home and the roamed-on host
    systems, *i.e.*, between carriers. 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 telephone number, verifies that it has an
    arrangement with that carrier, and queries the carrier to verify
    that the subscriber's account is current (and in some instances to
    obtain information about the subscriber, such as her preferred
    service features).[^7]

    **B. Current Requirements**

5.  Prior to 1996, the Commission's rules required only cellular
    carriers to offer manual roaming.[^8] In 1996, in the *Second Report
    and Order* and accompanying *Third NPRM*, the Commission considered
    the imposition of manual and automatic roaming obligations on CMRS
    providers generally.[^9] In the *Second Report and Order*, the
    Commission determined that the availability of roaming on broadband
    wireless networks was important to the development of nationwide,
    ubiquitous, and competitive wireless voice telecommunications, and
    that during the period in which these service systems were being
    built market forces alone might not be sufficient to cause roaming
    to become widely available.[^10] The Commission also concluded that
    roaming is a common carrier service,[^11] and that the Commission
    has authority to impose a roaming requirement in the public interest
    pursuant to our licensing authority under Sections 303(r) and 309 of
    the Communications Act of 1934, as amended.[^12] The Commission also
    noted that roaming capability was widely available to cellular
    subscribers and highly valued by those subscribers, that roaming
    capability was a key factor considered by consumers when
    distinguishing between services offered by providers in the wireless
    marketplace, and that newer entrants might be at a competitive
    disadvantage vis-à-vis incumbent wireless carriers if their
    subscribers had no ability to roam on other networks.[^13]
    Accordingly, the Commission extended the then-existing manual
    roaming rule requiring cellular carriers to serve individual roamers
    to include other CMRS providers, both broadband PCS and "covered"
    SMR, that offer comparable competitive telephony services so long as
    the roamer's handset is technically capable of accessing their
    services.[^14]

6.  In the *Third NPRM*, the Commission invited additional comment on
    both automatic and manual roaming. Specifically, it asked whether
    the Commission should promulgate any rule governing covered
    providers' obligations to provide automatic roaming service. The
    *Third NPRM* further posited that the market would likely render any
    automatic roaming rule unnecessary five years after the last group
    of initial licenses for broadband PCS spectrum was awarded, and it
    asked whether any automatic roaming rule, as well as the existing
    manual roaming rule, should be sunset at that time.[^15] The
    Wireless Telecommunications Bureau subsequently sought further
    comment on automatic roaming in a public notice.[^16]

7.  In July 2000, the Commission generally affirmed the manual roaming
    requirement in the *Manual Roaming Order on Reconsideration*,[^17]
    while modifying the definition of which CMRS providers were
    "covered" as well as extending the rule's application to certain
    data providers.[^18] Thus the manual roaming requirement, as
    amended, 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.[^19] In that same order, the Commission terminated
    consideration in CC Docket No. 94-54 of the issues raised in the
    *Third NPRM*, finding that subsequent developments in the market and
    technology had rendered the record stale.[^20]

    **C. Current State of the Marketplace**

8.  At the time of the issuance in 1996 of the manual roaming rule, the
    CMRS market and related technologies were significantly less
    advanced than today. For instance, in 1996 cellular providers
    dominated the CMRS telephony marketplace. It was not until November
    1995 that the first broadband PCS service had been launched, and SMR
    providers were only beginning to deploy the technologies that would
    enable them to compete directly with those services provided by
    cellular and broadband PCS systems. Furthermore, dual-band and
    dual-mode handsets, critical to the development of widespread
    roaming, were still in the process of being developed and placed on
    the market.

9.  During the past few years, dramatic changes have continued to occur
    in the CMRS marketplace. Following the initial auctions of the A and
    B block broadband PCS spectrum during 1994-95, and the C, D, E, and
    F block broadband PCS spectrum during 1995-97, PCS licensees have
    been building out their networks. Similarly, certain SMR providers
    have developed services that compete directly with services
    typically offered by cellular and broadband PCS. As recently
    reported in our *Fifth CMRS Competition Report*, new entrant
    wireless providers -- both broadband PCS and digital SMR operators
    -- have continued to deploy their networks in an increasing number
    of markets.[^21] The mobile telephone services offered by cellular,
    broadband PCS, and certain SMR systems now are essentially
    interchangeable for many consumers.[^22]

10. The *Fifth CMRS Competition Report* examined the state of
    competition in 1999 among CMRS telephony providers. We found that
    the mobile telephony sector continues to experience heightened
    competition as a result of the expansion of service by broadband PCS
    and digital SMR carriers.[^23] We also noted that in the five years
    since the Commission first granted the A and B block broadband PCS
    licenses, non-cellular carriers have built extensive networks
    covering a large portion of the country's population, with coverage
    increasing each year. We found that, by the end of 1999, 88 percent
    of the total U.S. population have at least three carriers (two
    cellular and one non-cellular) offering mobile telephone service in
    at least some part of the counties in which they live, 69 percent of
    the population can choose among at least five carriers, and 11
    percent can choose among seven different mobile telephone
    operators.[^24] Our analysis also reflected, however, that the more
    populous areas tend to have the most competitive markets, while the
    more rural areas in the country are less likely to be experiencing
    the same level of competition from new entrants.[^25]

11. In addition, we noted in the *Fifth CMRS Competition Report* that
    consolidation of the CMRS mobile telephone sector continues. Since
    issuance of the *Fourth CMRS Competition Report* the year before,
    two new nationwide[^26] operators, Verizon Wireless and Voicestream,
    have emerged alongside the three other operators with nationwide
    footprints, AT&T Wireless Services, Sprint PCS Group, and
    Nextel.[^27] In addition, SBC and BellSouth have agreed to combine
    their U.S. mobile wireless operations into a joint venture.[^28] One
    of the driving forces behind these consolidations has been the
    desire of large regional carriers to enhance their ability to
    compete effectively with some national operators.[^29] And, while
    most of the high profile transactions have been on a national stage,
    there also have been several smaller transactions that have been
    completed or announced over the last year. Many of these have
    involved existing nationwide or regional operators purchasing
    smaller companies in order to expand or enhance their existing
    footprints.[^30] Smaller operators have also made acquisitions in an
    attempt to increase the size of their footprints.[^31] Digital SMR
    remains dominated by one provider, Nextel, which in 1999 had over
    4.5 million subscribers, while the second largest provider had
    approximately 200,000 subscribers, and the third largest
    approximately 65,000 subscribers.[^32]

12. Dramatic changes also have occurred with respect to CMRS
    technologies. Many analog systems have been, or are in the process
    of being, converted to digital systems.[^33] Technological standards
    and handsets that render certain CMRS systems interoperable have
    been developed so as to enable widespread roaming among CMRS
    providers. For instance, multi-mode and multi-band handsets have
    become widely available. These technologies have made certain analog
    and digital networks, and certain cellular and broadband PCS
    networks, interoperable.[^34] It should be noted, however, that SMR
    technology apparently remains incompatible with cellular and
    broadband PCS networks.[^35]

13. These developments, among others, have had an impact on the nature
    and extent to which automatic roaming has become available to end
    users. Many carriers have reached automatic roaming agreements among
    themselves, and various forms of automatic roaming have become
    commonplace. As we noted in our *Fifth CMRS Competition Report*,
    analysts report that roaming prices have substantially declined
    during the past couple of years.[^36] Analysts attribute this
    reduction primarily to new switching capability and to rural
    buildout by affiliates of major carriers.[^37] First, technological
    developments have further improved the ability of digital handsets
    to roam on additional networks.[^38] As a result, the major carriers
    are able to leverage large bundles of roaming minutes when
    negotiating for roaming rates. Second, several major carriers have
    entered agreements with affiliates to build out their secondary and
    rural markets. As a result, carriers have additional alternatives
    for their traffic, which potentially lowers roaming rates.[^39] In
    addition, the recent advent and widespread adoption by virtually all
    of the major operators of "digital-one-rate" (DOR) price plans,
    where subscribers can purchase a bucket of minutes-of-use on a
    nationwide or nearly-nationwide network without incurring roaming
    (or long distance) charges, may serve to exert downward price
    pressure on roaming rates.[^40] Thus, over the last few years
    automatic roaming has become widespread, and roaming rates generally
    have continued to fall.

# NOTICE OF PROPOSED RULEMAKING

14. In this NPRM, we invite comments on: (1) whether we should adopt an
    automatic roaming requirement that would apply to certain CMRS
    providers, and if so, how it should be designed and implemented and
    for what period of time; and (2) whether we should, either now or in
    the future, sunset the existing manual roaming requirement placed on
    those providers. Comments should include discussion of developments
    in the market and in technologies, such as those developments
    discussed above in Section II(C), that should inform our analysis of
    what regulatory actions, if any, the Commission should take on
    roaming. We issue this NPRM to further the goals and requirements of
    the Communications Act of 1934, as amended,[^41] including the
    charge given us by Congress to promote competition, including
    facilities-based competition, and reduce regulation in order to
    secure lower prices and higher quality services for American
    telecommunications consumers and encourage the rapid deployment of
    new telecommunications technologies.[^42]

15. We continue to adhere to the general principles on roaming that we
    enunciated in the *Second Report and Order.* We affirm our
    conclusion in that order that ubiquitous roaming on CMRS systems is
    important to the development of a seamless, nationwide "network of
    networks."[^43] We further affirm our determination that roaming is
    a common carrier service because roaming capability gives end users
    access to a foreign network in order to communicate messages of
    their own choosing, and thus that the provision of roaming is
    subject to the requirements of Sections 201(b), 202(a), and
    332(c)(1)(B) of the Communications Act.[^44] In addition, we have
    the authority to impose a roaming requirement in the public interest
    pursuant to our license conditioning authority under Sections 303(r)
    and 309 of the Act.[^45]

16. We believe it important to state at the outset of this NPRM our
    general approach to considering whether to adopt an automatic
    roaming rule or continue to maintain the manual roaming rule. To the
    extent that competition in the CMRS marketplace has eliminated the
    means or the economic incentives for certain CMRS providers to
    discriminate unreasonably in the provision of roaming, or otherwise
    to engage in unjust or unreasonable practices, we believe that
    requirements imposed by the Commission would not be in the public
    interest.[^46] Thus, we proposed in the *Third NPRM* to sunset any
    automatic roaming rule five years after we awarded the last group of
    initial broadband PCS licenses because we believed the market would
    at that time render regulations superfluous.[^47] Only 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, do we believe it may be in the public interest to impose
    a roaming requirement that will facilitate the widespread
    availability of roaming and promote competition in wireless
    services.[^48] We invite comment on this approach and these
    conclusions.

## A. Automatic Roaming {#a.-automatic-roaming .unnumbered}

17. In the 1996 *Third NPRM*, the Commission stated that the record at
    that time was inconclusive as to whether it should adopt an
    automatic roaming rule. The Commission determined that taking any
    action on automatic roaming would be premature because of the
    anticipated costs of such a rule, technological impediments (*e.g.*,
    interoperability issues), and the possibility that competition among
    the increasing number of CMRS providers would ensure development of
    automatic roaming arrangements that would protect the public
    interest.[^49] In this NPRM, we seek up-to-date information on
    automatic roaming that will enable the Commission to fully consider
    the question and reach an informed decision about whether to adopt
    such a rule. We seek comment on the advantages or disadvantages of
    an automatic roaming rule under current and/or anticipated market
    conditions and utilizing current and/or anticipated technologies. We
    invite comment from parties representing all interests in the CMRS
    market, including new entrants that may not have had a full
    opportunity to participate in our earlier proceeding.[^50]

18. Initially, we do not believe we should adopt any automatic roaming
    rule unless it is clear that providers' current practices are
    unreasonably hindering the operation of the market to the detriment
    of consumers.[^51] We therefore seek comment on the availability of
    automatic roaming generally, and on whether there is any history of
    wireless providers denying roaming agreements to other providers in
    a manner that harms consumers. If so, what evidence is there that
    these denials have been unreasonable or discriminatory, and what
    incentives are there for refusing to enter into reasonable
    agreements? We also seek comment on whether providers have
    discriminated unreasonably with respect to the prices or other terms
    on which they make roaming agreements available to different
    carriers. In addition, we seek information on whether any particular
    class of providers is especially likely to refuse to enter into
    reasonable and non-discriminatory roaming agreements. For example,
    do providers' incentives and practices differ depending on whether
    they operate cellular, broadband PCS, or SMR networks?[^52] Are
    incumbent or large providers more likely to deny roaming agreements
    than smaller providers or new entrants?

19. In recent years, a number of carriers, including AT&T, Sprint,
    Nextel, Verizon, Voicestream, and SBC and BellSouth have acquired or
    are in the process of acquiring nationwide "footprints" and
    networks. We seek comment on whether carriers with nationwide or
    other geographically extensive holdings have an incentive to deny
    automatic roaming agreements to their local or regional competitors.
    If so, should an automatic roaming rule be fashioned to reach only
    these larger providers? We also seek comment on the relationship, if
    any, between our CMRS spectrum cap and the need for an automatic
    roaming requirement.[^53]

20. We also seek comment on whether the absence of an automatic roaming
    rule has hindered or promoted facilities-based competition among
    CMRS providers. To the extent that evidence is presented showing
    that certain carriers are not willing to enter into reasonable
    roaming agreements, we further seek comment on the extent to which
    this refusal affects competition. Thus, we seek comment on whether
    carriers in the CMRS market, including new entrants and smaller
    carriers, have viable options to obtain automatic roaming agreements
    or other arrangements if incumbent or large providers refuse to
    enter into such agreements.[^54] We also seek comment on whether
    small or local carriers need access to nondiscriminatory roaming
    agreements in order to compete, or whether there is a sustainable
    market for customers who have little or no interest in roaming.

21. To the extent the record evidence establishes the existence of a
    problem that an automatic roaming rule could remedy, we then must
    weigh the potential benefits of regulation against its costs. This
    balance depends in large part on the specific rule that we would
    consider. In the *Third NPRM*, we 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.[^55] Such a
    rule could prevent established carriers from entering into favorable
    agreements with selected providers while unreasonably denying such
    agreements to similarly situated carriers. It would not require
    carriers to provide roaming service to any carrier at all. Were we
    to establish such a rule, we seek comment on how we should define
    "similarly situated" in the rule.[^56] We also seek comment
    generally on any other potential automatic roaming rules that may be
    appropriate.

22. Commenters should address not only the potential benefits of various
    regulatory options, but also 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
    nationwide footprints? 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 such a rule impede the development of new and
    improved roaming features? What new and improved roaming services
    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 the costs of a rule impact small carriers
    disproportionately, such that some form of exemption for those
    carriers would be appropriate?

23. 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."

24. We further request comment on any and all current and anticipated
    technical considerations that should influence our decision. For
    instance, have technical advances enabled widespread
    interoperability of CMRS networks or otherwise eased the
    difficulties associated with making automatic roaming possible? We
    also seek comment on any technical relationship between the
    introduction of local number portability and automatic roaming.

25. In the existing manual roaming requirement, we require that the
    subscriber seeking to roam must first possess a handset that is
    technically capable of accessing the roamed-on system.[^57]
    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 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 technology for legitimate
    business reasons (*e.g.*, increasing capacity, spectrum efficiency,
    fraud control, or deployment of enhanced features) without any
    obligation to make the system accessible to roamers using different
    technologies; presumably under such a rule, however, a carrier could
    not introduce features into its system in order to obstruct service
    to roamers from systems using otherwise compatible technologies. We
    seek comment on this analysis, as well as comment on the possible
    design of a rule reflecting this approach.

26. 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 whether there are adequate
    remedies under existing law, such as the means permitted under
    Sections 201, 202, 208, and 251of the Act. [^58] We seek general
    comment on whether the avenues of complaint and redress afforded by
    Section 208 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.

27. We also seek comment on whether any automatic roaming rule should
    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).[^59] 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 and operations.

28. 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.

29. Finally, 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.

    **B. Manual Roaming**

30. In 1996, having determined that roaming was a critical element of
    CMRS service, we found that, at a minimum, some form of roaming rule
    was necessary as the broadband PCS networks were being built out.
    Accordingly, in our *Second Report and Order* we expanded the manual
    roaming requirement to broadband PCS and certain SMR providers so
    that subscribers with technically capable handsets would be assured
    of being able to roam.[^60]

31. We now believe it is appropriate, in the context of the current
    NPRM, 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. How often do
    subscribers avail themselves of this service? 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.
    Commenters should address the extent to which the manual roaming
    rule actually promotes the goals we sought to achieve in our 1996
    *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.

## C. Sunset of Roaming Rule(s) {#c.-sunset-of-roaming-rules .unnumbered}

32. When issuing the *Third NPRM* in 1996, the Commission tentatively
    concluded that any roaming rule adopted, whether manual or
    automatic, should apply only for a transitional period.[^61] It
    stated its belief that once broadband PCS providers' buildout
    periods were completed, sufficient wireless capacity would be
    available that would likely render a manual or automatic roaming
    rule unnecessary.[^62] We renew this tentative conclusion. We seek
    comment on whether any automatic or manual roaming requirement that
    we adopt or retain in this proceeding should be sunset and, if so,
    when. Further, we inquire whether any sunset of the manual roaming
    rule should be contingent upon adoption of an automatic roaming
    rule.

# PROCEDURAL MATTERS

**A. Regulatory Flexibility Act**

33. As required by the Regulatory Flexibility Act (RFA),[^63] the
    Commission has prepared an Initial Regulatory Flexibility Analysis
    (IRFA) of the possible significant economic impact on small entities
    of the potential regulatory actions on which comment is requested in
    this Notice of Proposed Rulemaking. The IRFA is set forth in the
    attached Appendix. Written public comments are requested on the
    IRFA. These comments must be filed in accordance with the same
    filing deadlines for comments on the rest of this Notice of Proposed
    Rulemaking, as set forth in Section IV(C), *infra*, and they must
    have a separate and distinct heading designating them as responses
    to the IRFA. The Commission's Office of Public Affairs, Reference
    Operations Division, will send a copy of this Notice of Proposed
    Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of
    the Small Business Administration, in accordance with the RFA.[^64]
    In addition, this Notice of Proposed Rulemaking, including the IRFA
    (or summaries thereof), will be published in the Federal
    Register.[^65]

    **B. *Ex Parte* Rules**

34. This Notice of Proposed Rulemaking initiates and constitutes a
    "permit-but-disclose" proceeding in accordance with the Commission's
    *ex parte* rules.[^66] Persons making oral *ex parte* presentations
    relating to the Notice of Proposed Rulemaking are reminded that
    memoranda summarizing the presentations must contain summaries of
    the substance of the presentations and not merely a listing of the
    subjects discussed. More than a one or two sentence description of
    the views and arguments presented is generally required.[^67] Other
    rules pertaining to oral and written presentations are set forth in
    Section 1.1206(b) as well. Interested parties are to file with the
    Secretary, FCC, and serve International Transcription Services (ITS)
    with copies of any written *ex parte* presentations or summaries of
    oral *ex parte* presentations in these proceedings in the manner
    specified below for filing comments.

    **C. Filing Procedures**

35. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47
    C.F.R. §§ 1.415 and 1.419, interested parties may file comments on
    or before January 5, 2001, and reply comments on or before February
    5, 2001. Comments may be filed using the Commission's Electronic
    Comment Filing System (ECFS) or by filing paper copies. *See
    Electronic Filing of Documents in Rulemaking Proceedings*, 63 Fed.
    Reg. 24,121 (1998).

36. Comments filed through the ECFS can be sent as an electronic file
    via the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>.
    Generally, only one copy of an electronic submission must be filed.
    In completing the transmittal screen, commenters should include
    their full name, Postal Service mailing address, and the applicable
    docket or rulemaking number. Parties may also submit an electronic
    comment by Internet e-mail. To get filing instructions for e-mail
    comments, commenters should send an e-mail to ecfs@fcc.gov, and
    should include the following words in the body of the message, "get
    form \<your e-mail address\>." A sample form and directions will be
    sent in reply.

37. Parties who choose to file by paper must file an original and four
    copies of each filing. All filings must be sent to the Commission's
    Secretary, Magalie Roman Salas, Office of the Secretary, Federal
    Communications Commission, 445 Twelfth Street, S.W.; TW-A325;
    Washington, D.C. 20554.

38. Regardless of whether parties choose to file electronically or by
    paper, parties should also file one copy of any documents filed in
    this docket with the Commission's copy contractor, International
    Transcription Services, Inc., 445 Twelfth Street, S.W., Room
    CY-B402, Washington, D.C. 20554. Comments and reply comments will be
    available for public inspection during regular business hours in the
    FCC Reference Center, 445 12th Street, S.W., Washington, D.C. 20554.

39. Comments and reply comments must include a short and concise summary
    of the substantive arguments raised in the pleading. Comments and
    reply comments must also comply with section 1.49, 47 C.F.R. § 1.49,
    and all other applicable sections of the Commission's rules. We also
    direct all interested parties to include the name of the filing
    party and the date of the filing on each page of their comments and
    reply comments. All parties are encouraged to utilize a table of
    contents, regardless of the length of their submission.

    **D. Further Information**

40. For further information on this notice of proposed rulemaking,
    contact Paul Murray, Wireless Telecommunications Bureau, Commercial
    Wireless Division, at (202) 418-7240, pmurray@fcc.gov.

# ordering clauses

41. Accordingly, IT IS ORDERED, pursuant to sections 1, 2(a), 4(i),
    4(j), 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, 152(a),
    154(i), 154(j), 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 Notice of Proposed Rulemaking is ADOPTED.

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

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

**Appendix**

**INITIAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act (RFA),[^68] the Commission
has prepared this present Initial Regulatory Flexibility Analysis (IRFA)
of the possible significant economic impact on small entities by the
policies and rules proposed in this Notice of Proposed Rulemaking
(NPRM). 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 this NPRM provided above in Section IV(C), and
they must have a separate and distinct heading designating them as
responses to the IRFA. The Commission will send a copy of the NPRM,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration, in accordance with the RFA.[^69] In addition,
the NPRM and IRFA (or summaries thereof) will be published in the
Federal Register.[^70]

**A. Need for and Objectives of the Proposed Rules**

This NPRM requests comment on two issues that pertain to the regulation
or possible regulation of certain commercial mobile radio service (CMRS)
providers' obligations.

First, the NPRM requests comment on whether the Commission should,
either now or in the future, sunset the existing "manual" roaming
requirement. The existing manual roaming rule requires that covered
cellular, broadband Personal Communications Services (PCS) and
Specialized Mobile Radio (SMR) carriers make service available to
individual users upon request, so long as the roamer's handset is
technically capable of accessing their services. "Manual" roaming is the
most rudimentary form of roaming; it is the only form of roaming
available when there is no pre-existing contractual relationship between
a subscriber, or the subscriber's home system, and the system on which
the subscriber wants to roam. In order to make or receive a call, the
subscriber must establish such a relationship. Typically, the "manual"
roamer accomplishes this by attempting to originate a call by giving a
valid credit card number to the carrier providing roaming service.
Specifically, the NPRM requests comment on whether the "manual" roaming
rule should sunset on five years after the last group of initial
licenses are issued for broadband spectrum, that is, November 24, 2002.

Second, the NPRM requests comment on whether the Commission should adopt
an "automatic" roaming requirement that would apply to CMRS providers,
and if so, how it should be designed and implemented and for what period
of time. "Automatic" roaming permits a subscriber to make and receive
calls simply by turning on his or her phone, and it requires an
agreement between the home and roamed-on systems. Specifically, the NPRM
seeks comment, including comment specifically concerning small entities,
on whether the Commission should adopt a rule requiring carriers that
enter "automatic" roaming agreements with any other carrier to make like
agreements available to "similarly situated" providers under
non-discriminatory rates, terms, and conditions. The Commission also
seeks comment on the potential costs of an "automatic" roaming rule,
including whether it would impede technological progress, whether it
would interfere with free and open competition, and whether it would
expose providers to the risk of losses due to fraud. The Commission
requests comment on what administrative costs would be involved, and how
any rule should be drafted so as to minimize such costs.

**B. Legal Basis**

The potential actions on which comment is sought in this NPRM would be
authorized under sections 1, 2(a), 4(i), 4(j), 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, 152(a), 154(i), 154(j), 201(b), 251(a), 253, 303(r),
and 332(c)(1)(B).

**C. 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."[^71] The RFA generally defines "small entity" as having the
same meaning as the terms "small business," "small organization," and
"small governmental jurisdiction."[^72] In addition, the term "small
business" has the same meaning as the term "small business concern"
under the Small Business Act.[^73] 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).[^74]

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 NPRM. In
particular, we seek estimates of how many small entities that 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 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.

***Estimates for Cellular Licensees***

Neither the Commission nor the SBA has developed a definition of small
entities applicable to cellular licensees. Therefore, the applicable
definition of a small entity is the definition under the SBA rules
applicable to radiotelephone (wireless) companies. This provides that a
small entity is a radiotelephone company employing no more than 1,500
persons.[^75] According to the Bureau of the Census, only twelve
radiotelephone firms from a total of 1,178 such firms which operated
during 1992 had 1,000 or more employees. [^76] Therefore, even if all
twelve of these firms were cellular telephone companies, nearly all
cellular carriers were small businesses under the SBA's definition. In
addition, we note that there are 1,758 cellular licenses; however, a
cellular licensee may own several licenses. In addition, according to
the most recent Trends in Telephone Service data, 808 carriers reported
that they were engaged in the provision of either cellular service,
Personal Communications Service (PCS), or Specialized Mobile Radio
Telephone (SMR) service, which are placed together in the data.[^77] We
do not have data specifying the number of these carriers that are not
independently owned and operated or have more than 1,500 employees, and
thus are unable at this time to estimate with greater precision the
number of cellular service carriers that would qualify as small business
concerns under the SBA's definition. Consequently, we estimate that
there are 808 or fewer small cellular service carriers that may be
affected by any regulations adopted pursuant to this proceeding.

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.

***Estimates 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 defined "small entity" for Blocks C and F as an
entity that has average gross revenues of \$40 million or less in the
three previous calendar years. [^78] For Block F, an additional
classification 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.[^79]
These regulations defining "small entity" in the context of broadband
PCS auctions have been approved by the SBA.[^80] No small businesses
within the SBA-approved definition 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.[^81] Based on this information, we conclude that the
number of small broadband PCS licensees will include the 90 winning C
Block bidders and the 93 qualifying bidders in the D, E, and F blocks,
for a total of 183 small entity PCS providers as defined by the SBA and
the Commission\'s auction rules.

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.

***Estimates for SMR Licensees***

Pursuant to 47 C.F.R. 90.814(b)(1), the Commission has defined "small
business" for purposes of auctioning 900 MHz SMR licenses,[^82] 800 MHz
SMR licenses for the upper 200 channels,[^83] and 800 MHz SMR licenses
for the lower 230 channels[^84] as a firm that has had average annual
gross revenues of \$15 million or less in the three preceding calendar
years. This small business size standard for the 800 MHz and 900 MHz
auctions has been approved by the SBA. Any rules adopted pursuant to
this NPRM 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 very few small business,
incumbent site-by-site SMR licensees offer services meeting this
description. Geographic licensees are considered more likely to offer
such services. In all cases, we provide estimates below that are
conservative so as to not underestimate the impact on small entities.

Sixty winning bidders for geographic area licenses in the 900 MHz SMR
band qualified as small businesses under the \$15 million size standard.
We do not know which of these licensees will 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. We estimate that the number of small
business 900 MHz SMR geographic area licensees that could be affected by
rule modifications is 60 or fewer.

The auction of the 525 800 MHz SMR geographic area licenses for the
upper 200 channels began on October 28, 1997, and was completed on
December 8, 1997. Ten (10) winning bidders for geographic area licenses
for the upper 200 channels in the 800 MHz SMR band qualified as small
businesses under the \$15 million size standard. We do not know which of
these licensees will 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.
Therefore, we estimate that the number of small business 800 MHz SMR
geographic area licensees for the upper 200 channels that could be
affected by rule modifications is ten or fewer.

The Commission anticipates that a total of 3,853 EA licenses will be
auctioned in the lower 230 channels of the 800 MHz SMR service. This
figured is derived by multiplying the total number of Economic Areas
(EAs) (175)[^85] by the number of channel blocks (22) in the lower 230
channels.[^86] Three additional upper band channels will be licensed as
well.[^87] No party submitting or commenting on the petitions for
reconsideration giving rise to our *Reconsideration* of October 8,
1999,[^88] commented on the potential number of small entities that
might participate in the auction of the lower 230 channels and no
reasonable estimate can be made. Therefore, we conclude that the number
of 800 MHz SMR geographic area licensees for the lower 230 channels that
may ultimately be affected by this rule modification could be as many as
3,853.

With respect to licensees operating under extended implementation
authorizations, by November 1997 thirty-three licensees with extended
implementation authority in the 800 MHz SMR Service were granted two
years two complete the buildout of their systems.[^89] At this time, our
records indicate that twenty-seven licensees with extended
implementation authority still exist, but there may be as few as
twenty-two remaining as independent entities. The Commission will soon
receive filings that will clarify the situation. Until then, we will
assume that there are twenty-seven remaining licensees in this category
and that they all qualify as small businesses utilizing the SBA's
wireless size standard of \$15 million or less. However, we do not know
how many of these licensees 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. Therefore, estimating conservatively, we conclude that the number
of small business SMR licensees operating in the 800 MHz and 900 MHz
bands under extended implementation authorizations that could be
affected by a rule modification is up to 27 entities.

The Commission does not have an accurate estimate of the number of
incumbent site-by-site SMR licensees, and a reliable figure will not be
available until the SMR site-by-site licensees migrate to the Universal
Licensing System. Making this estimate is complicated by the number of
recent transactions that have occurred in the 800 MHz SMR service.
However, our task is also greatly simplified for purposes of this
regulatory flexibility analysis because we are looking for a very
specific type of SMR licensee. That is, the licensee must: first,
qualify as a small business (*i.e*., average annual gross revenues of
\$15 million or less in the three preceding calendar years); second,
offer real-time, two-way switched voice or data service that is
interconnected with the public switched network; and third, use an
in-network switching facility that enables the provider to reuse
frequencies and accomplish seamless hand-offs of subscriber calls. These
criteria greatly restrict the number of SMR providers who could be
affected by this new rule. Although there may be SMR carriers who
provide such services it is high unlikely that they will be small
entities or small businesses given the nature of the SMR providers and
the development of that industry. Consequently, even though there may be
no licensees that satisfy these criteria, we will err on the sake of
caution and conclude that 25 small entities may fall into this category.

**D. Reporting, Recordkeeping, and Other Compliance Requirements**

We anticipate that any rules that may be adopted pursuant to this NPRM
will impose no reporting or recordkeeping requirements. The only
compliance costs likely to be incurred, as a result, are administrative
costs to ensure that an entity\'s practices are in compliance with the
rule. The only compliance requirement of the new rules is that licensees
subject to any automatic roaming requirement (*i.e*., cellular
licensees, 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) would have to provide non-discriminatory access
to their wireless systems via automatic roaming once they had reached an
agreement with any carrier to permit automatic roaming. As noted above
in this Initial Regulatory Flexibility Analysis, and in the text of the
NPRM, we seek comment on the potential costs of implementing an
automatic roaming requirement in this context, including such potential
costs on small business.

**E. 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.[^90]

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 NPRM are those what would be associated with an
"automatic" roaming rule.

As indicated in the NPRM, were the Commission to propose an "automatic"
roaming rule, the subscribers of any carrier requesting that another
carrier enter a nondiscriminatory automatic roaming arrangement would
have the burden of ensuring that its subscribers were using equipment
that is technically capable of accessing the roamed-on carrier's
network. Thus, to the extent the roamed-on carrier's network were that
of a smaller carrier, the economic burden of having equipment
technically capable of accessing the network would not fall on the
smaller carrier. Also, we note that an automatic roaming rule, if
adopted, would not require a small business to modify its network to
accommodate automatic roaming.

In this NPRM, the Commission also specifically has requested comments
from small businesses that would provide information on the extent to
which such a rule would impose costs and administrative burdens on them.
For instance, we inquire whether the costs of such a rule would impact
smaller carriers disproportionately, such that we should fashion the
rule to reach only the larger providers. The Commission will draw on
this information when considering whether a rule should be promulgated,
and if so, how it can best be drafted to minimize any costs placed on
small businesses. Furthermore, we inquire whether adoption of an
"automatic roaming" rule would in fact be in the best interests of small
businesses. Specifically, in considering whether or not to adopt an
"automatic roaming" rule, we inquire of smaller carriers whether such a
rule would be most beneficial to such carriers to the extent they may
have difficulty obtaining agreements from larger carriers absent such a
rule.

**F. Federal Rules that May Duplicate, Overlap, or Conflict With the
Proposed Rules**

None.

[^1]: ^?^ Roaming, including the definition of both "manual" and
    "automatic" roaming, is explained, *infra*, in Section II(A).

[^2]: ^?^ *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, FCC
    00-251 (rel. Aug. 28, 2000). The portions of that item that ordered
    termination of consideration of roaming issues in that docket, ¶¶ 3,
    22-24, will be referenced herein as the *Docket Termination Order*,
    while those portions that generally affirmed the manual roaming
    rule, ¶¶ 1-2, 4-21, will be referenced herein as the *Manual Roaming
    Order on Reconsideration*.

[^3]: ^?^ *See* 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) (*Second Report and Order* and *Third NPRM*,
    respectively).

[^4]: ^?^ *Second Report and Order*, 11 FCC Rcd at 9466 (¶ 7).

[^5]: ^?^ *Id.* at 9465 (¶ 5).

[^6]: ^?^ 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.

[^7]: ^?^ *See Second Report and Order*, 11 FCC Rcd at 9465-66 (¶ 6).

[^8]: ^?^ *Id.* at 9470 (¶ 12); *see* 47 C.F.R. § 22.901 (1995).

[^9]: ^?^ *See generally Second Report and Order* and *Third NPRM*, 11
    FCC Rcd 9462.

[^10]: ^?^ *Second Report and Order*, 11 FCC Rcd at 9464 (¶ 2), 9468-70
    (¶¶ 10-11).

[^11]: ^?^ *Id.* at 9469 (¶ 10).

[^12]: ^?^ 47 U.S.C. §§ 303(r), 309. *See Second Report and Order*, 11
    FCC Rcd at 9469 (¶ 10).

[^13]: ^?^ *Id.* at 9469-70 (¶ 11).

[^14]: ^?^ *Id.* at 9464 (¶ 2), 9470-71(¶¶ 12-14).

[^15]: ^?^ The last group of initial licenses for broadband PCS spectrum
    was awarded on November 24, 1997. Thus, the hypothetical sunset date
    discussed in the *Third NPRM* will fall on November 24, 2002. *See*
    Public Notice, "Commencement of Five-Year Period Preceding
    Termination of Resale Rule Applicable to Certain Covered Commercial
    Mobile Radio Service Providers, CC Docket No. 94-54, 13 FCC Rcd
    17427 (1998) (establishing November 24, 2002 -- five years after we
    awarded the last group of initial licenses for broadband PCS -- as
    the sunset date for CMRS resale rule).

[^16]: ^?^ Public Notice, "Commission Seeks Additional Comment on
    Automatic Roaming Proposals For Cellular, Broadband PCS, and Covered
    SMR Networks \[in\] CC Docket No. 94-54," (DA 97-2558) (December 5,
    1997) (*Public Notice*).

[^17]: ^?^ *See* *Manual Roaming Order on Reconsideration* at ¶ 21.

[^18]: ^?^ *Id.* at ¶¶ 9-17, 19.

[^19]: ^?^ *Id.* at ¶ 18.

[^20]: ^?^ *Docket Termination Order* at ¶¶ 22-24.

[^21]: ^?^ *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, *Fifth Report* (FCC 00-289) (rel. Aug. 18, 2000) (*Fifth
    CMRS Competition Report*) at 5-6.

[^22]: ^?^ *Id.* at 9.

[^23]: ^?^ *Id.* at 11*.*

[^24]: ^?^ *Id.* at 18. Note, however, that this coverage analysis
    overstates to some degree the total coverage in terms of both
    geographic areas and populations because the analysis, which is
    county-by-county, counts all of the geographic area and population
    found in each county where there is some coverage even if that
    service only covers part of a county. *Id.*

[^25]: ^?^ *Id.* For instance, while 88 percent of the total population
    had at least 3 mobile telephony carriers providing service within
    their counties, these counties make up only 35% of the total land
    area of the United States (42% excluding Alaska). *Id.* Dividing
    counties into quartiles by population shows a similar pattern. While
    85.8% of the counties in the top quartile had at least one broadband
    PCS operator providing service, only 12% of the counties in the
    bottom quartile had some broadband PCS coverage. *Id.* at 30.

[^26]: ^?^ The term "nationwide" does not necessarily mean that the
    operator's license areas, service areas, or pricing plans cover the
    entire land area of the United States. Instead, the term is applied
    when an operator offers service in at least some portion of the
    western, middle, and eastern United States. *Id.* at 9-10, n.38.

[^27]: ^?^ *Id.* at 9-10.

[^28]: ^?^ *Id.* at 12.

[^29]: ^?^ *Id.* at 10-11.

[^30]: ^?^ *Id.* at 12.

[^31]: ^?^ *Id.*

[^32]: ^?^ *Id.* at 30; Appendix D-2.

[^33]: ^?^ *Id.* at 13-14.

[^34]: ^?^ *Id.* at 20.

[^35]: ^?^ *See* Implementation of Section 6002(b) of the Omnibus
    Reconciliation Act of 1993, Annual Report and Analysis of
    Competitive Market Conditions with Respect to Commercial Mobile
    Services, *Fourth Report*, 14 FCC Rcd 10,145, 10,177 (1999).

[^36]: ^?^ *Fifth CMRS Competition Report* at 20.

[^37]: ^?^ *Id.*

[^38]: ^?^ For instance, improvements now allow digital handsets to
    switch between the A and B cellular and PCS bands, provided the
    customer has a dual band phone and the digital standards are
    compatible. This constitutes an improvement over old analog phones,
    which were only able to search for one of the two cellular bands and
    had to be manually reprogrammed to roam on another network. *Id.*

[^39]: ^?^ *Id.*

[^40]: ^?^ *Id.*

[^41]: ^?^ 47 U.S.C. §§ 151 *et seq.* (the "Communications Act" or the
    "Act").

[^42]: ^?^ *See generally* Telecommunications Act of 1996, Pub. L. No.
    104-104, 110 Stat. 56 (1996).

[^43]: ^?^ *Second Report and Order*, 11 FCC Rcd at 9467 (¶ 8).

[^44]: ^?^ *See id.* at 9469 (¶ 10).

[^45]: ^?^ *Id.*; *see* *WBEN, Inc. v. United States*, 396 F.2d 601,
    617-19 (2d Cir.), *cert. denied sub nom.* *WBEN, Inc. v. FCC*, 393
    U.S. 914 (1968); Upjohn Co. v. FDA, 811 F.2d 1583 (D.C. Cir. 1987;
    *Committee for Effective Cellular Rules v. FCC*, 53 F.3d 1309,
    1318-20 (D.C. Cir. 1995).

[^46]: ^?^ *See Third NPRM*, 11 FCC Rcd at 9471-72 (¶¶ 16-17).

[^47]: ^?^ *Id.* at 9479 (¶ 32).

[^48]: ^?^ *See Second Report and Order*, 11 FCC Rcd at 9470-71 (¶ 13).

[^49]: ^?^ *Third NPRM*, 11 FCC Rcd at 9471-72 (¶ 15).

[^50]: ^?^ We note that very few of the providers that had their primary
    holdings in the C, D, E, and F blocks of broadband PCS licenses
    filed comments on either the *Third NPRM* or the *Public Notice* in
    CC Docket No. 94-54.

[^51]: ^?^ Many of the commenters in recently terminated CC Docket No.
    94-54 contended that an automatic roaming rule would constitute an
    unwarranted departure from our general policy of allowing market
    forces, instead of regulation, to shape development of wireless
    technologies and a competitive marketplace. *See*, *e.g.*, Bell
    Atlantic NYNEX Mobile, Inc. (Bell Atlantic) *Third NPRM* Comments at
    2 and Reply Comments at 1-3; Cellular Telecommunications Industry
    Association (CTIA) *Third NPRM* Comments at 10-12 and Reply Comments
    at 8-9.

[^52]: ^?^ We note that the Commission recently received an *ex parte*
    filing in CC Docket 94-54 (prior to its termination) in which one
    SMR provider contended that there is particular need for an
    automatic roaming rule relating to SMR networks because of the
    consolidated nature of the SMR industry and because current
    technological constraints restrict SMR customers' ability to roam on
    cellular or PCS networks. *See* February 18, 2000 letter from
    Southern Communications Services Inc., d/b/a Southern LINC
    (Southern), to Magalie Roman Salas, Secretary, FCC, "*Ex Parte*
    Filing, CC Docket No. 94-54; Interconnection and Resale Obligations
    Pertaining to CMRS." *See also* Southern *Third NPRM* Reply Comments
    at 6, 9-10 (pointing out roaming technical issues pertinent only to
    SMR networks) and *Public Notice* Comments at 8 (contesting
    allegations by other SMR providers that inter-SMR roaming is
    technically infeasible).

[^53]: ^?^ *See* 47 C.F.R. § 20.6 (placing a limit on the amount of
    spectrum in which, in a particular geographic area, any cellular,
    broadband PCS, or digital SMR licensee may have an attributable
    interest).

[^54]: ^?^ Some of the commenters in CC Docket No. 94-54, including new
    entrants, smaller providers, and providers not affiliated with large
    or incumbent providers contended that an automatic roaming rule was
    necessary to assure them of being able to enter reasonable,
    non-discriminatory automatic roaming agreements so that they could
    compete effectively in the CMRS marketplace. *See, e.g.*, Alliance
    of Independent Wireless Operators (AIWO) *Third NPRM* Comments at 1,
    3-5; Western Wireless Corporation (Western Wireless) *Third NPRM*
    Comments at 7-8, 11-12 and Reply Comments at 3-4.

[^55]: ^?^ *Third NPRM*, 11 FCC Rcd at 9475 (¶ 22).

[^56]: ^?^ Several commenters in Docket CC 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 *Third NPRM* Comments at 15 and Reply
    Comments at 5-7; Rural Cellular Association (RCA) *Third NPRM*
    Comments at 4.

[^57]: ^?^ *See Third NPRM*, 11 FCC Rcd at 9470 (¶ 13).

[^58]: ^?^ Several commenters in CC Docket No. 94-54 contended that
    existing remedies were sufficient. *See, e.g.*, Bell Atlantic *Third
    NPRM* Comments at 7-8; Rural Telecommunications Group *Third NPRM*
    Comments at 4.

[^59]: ^?^ 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.

[^60]: ^?^ *Second Report and Order*, 11 FCC Rcd at 9470-71 (¶ 13), as
    affirmed in the *Manual Roaming Order on Reconsideration* at ¶¶ 2,
    6-21.

[^61]: ^?^ *Second Report and Order*, 11 FCC Rcd at 9479 (¶ 32).

[^62]: ^?^ *Id.*

[^63]: ^?^ *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et.
    seq.*, has been amended by the Contract With America Advancement Act
    of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II
    of the CWAAA is the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA).

[^64]: ^?^ *See* 5 U.S.C. § 603(a).

[^65]: ^?^ *See* *id.*

[^66]: ^?^ *See* Amendment of 47 C.F.R. § 1.1200 *et seq.* Concerning Ex
    Parte Presentations in Commission Proceedings, GC Docket No. 95-21,
    *Report and Order*, 12 FCC Rcd 7348, 7356-57 (¶ 27) (1997).

[^67]: ^?^ *See* 47 C.F.R. § 1.1206(b)(2), as revised.

[^68]: ^?^ *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et
    seq*., has been amended by the Contract With America Advancement Act
    of 1996, Pub. L. No. 1045-121, 110 Stat. 847 (1996) (CWAAA). Title
    II of the CWAAA is the Small Business Regulatory Enforcement
    Fairness Act of 1996 (SBREFA).

[^69]: ^?^ *See* 5 U.S.C. § 603(a).

[^70]: ^?^ *Id.*

[^71]: ^?^ 5 U.S.C. § 605(b).

[^72]: ^?^ 5 U.S.C. § 601(6).

[^73]: ^    ^ ^?^ 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."

[^74]: ^    ^ ^?^ Small Business Act, 15 U.S.C. § 632.

[^75]: ^?^ 13 C.F.R. §121.201, SIC code 4812.

[^76]: ^?^ *1992 Census,* Series UC92-S-1, at Table 5, SIC code 4812.

[^77]: ^?^ FCC, Common Carrier Bureau, Industry Analysis Division,
    *Trends in Telephone Service*, Table 19.3 (March 2000).

[^78]: ^?^ *See* Amendment of Parts 20 and 24 of the Commission\'s
    Rules - Broadband PCS Competitive Bidding and the Commercial Mobile
    Radio Service Spectrum Cap, WT Docket No. 96-59; Amendment of the
    Commission\'s Cellular/PCS Cross-Ownership Rule, GN Docket 90-314,
    *Report and Order*, 11 FCC Rcd 7824, 7850-52 (¶¶ 57-60) (1996)
    (*Cross Ownership Report & Order*); *see also* Section 24.720(b) of
    the Commission\'s Rules, 47 C.F.R. §24.720(b).

[^79]: ^?^ *Cross Ownership Report & Order*, 11 FCC Rcd at 7852 (¶ 60).

[^80]: ^?^ *See*, *e.g.*, Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, PP Docket No. 93-253,
    *Fifth Report and Order*, 9 FCC Rcd 5532, 5581-84 (¶¶ 114-20)
    (1994).

[^81]: ^?^ FCC News, *Broadband PCS, D, E and F Block Auction Closes*,
    No. 71744 (released Jan. 14, 1997).

[^82]: ^?^ *See* Amendment of Parts 2 and 90 of the Commission\'s Rules
    to Provide for the Use of 200 Channels Outside the Designated Filing
    Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the
    Specialized Mobile Radio Pool, PR Docket No. 89-583, *Second Order
    on Reconsideration and Seventh Report and Order*, 11 FCC Rcd 2639
    (1995).

[^83]: ^?^ *See* Amendment of Part 90 of the Commission\'s Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    frequency Band, PR Docket No. 93-144, First Report and Order,
    *Eighth Report and Order, and Second Further Notice of Proposed
    Rulemaking*, 11 FCC Rcd 1463 (1995).

[^84]: ^?^ *See* Amendment of Part 90 of the Commission\'s Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    frequency Band, PR Docket No. 93-144, *Second Report and Order*, 12
    FCC Rcd 19079 (1997).

[^85]: ^?^ The Department of Commerce Bureau of Economic Analysis has
    established 172 EAs which cover the continental United States. *See*
    "Final Redefinition of the BEA Economic Areas," 60 Fed. Reg. 31,114
    (March 10, 1995). The Commission has established three additional EA
    licensing regions for the five U.S. possessions.

[^86]: ^?^ The lower 80 channels were divided into 16 blocks of 5
    channels each and the General Category channels were divided into 6
    blocks of 25 channels each. This results in 22 channel blocks
    available for auction in each of the 175 EAs for a total of 3,850
    licenses. *See also Public Notice*, Auction of Licenses for 800 MHz
    Specialized Mobile Radio (SMR) Service General Category Frequencies
    in the 851-854 MHz Band Scheduled for August 23, 2000," DA 00-667
    (rel. March 23, 2000); *Public Notice*, Auction of Licenses for 800
    MHz Specialized Mobile Radio (SMR) Frequencies in the Lower 80
    Channels Scheduled for September 13, 2000, DA 00-668 (rel. March 23,
    2000); *Public Notice*, Auction of Licenses for 800 MHz Specialized
    Mobile Radio (SMR) Frequencies in the Lower 80 Channels Scheduled
    for September 13, 2000, DA 00-668 (rel. March 23, 2000), 65 Fed Reg.
    17272 (March 31, 2000) (2,800 licenses to be auctioned); *Public*
    *Notice*, Auction of Licensees For 800 MHz Specialized Mobile Radio
    (SMR) Service in the General Category Band (851-854 MHz) and Upper
    Band (861-865 MHz), DA 00-1100 (rel. May 18, 2000) (rescheduling
    auction from August 23^rd^ to August 16, 2000, and announcing
    procedures and minimum opening bids for 1,053 licenses).

[^87]: ^?^ *Public* *Notice*, Auction of Additional Licenses for 800 MHz
    Specialized Mobile Radio (SMR) Service to Be Included in Auction No.
    34 Scheduled for August 23, 2000: Comment Sought on Reserve Prices
    or Minimum Opening Bids and Other Auction Procedural Issues, DA
    00-877 (rel. April 18, 2000) (three additional licenses).

[^88]: ^?^ Amendment of Part 90 of the Commission\'s Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band,
    *Memorandum Opinion and Order on Reconsideration*, 14 FCC Rcd. 17556
    (1999), 64 Fed Reg. 71042 (Dec. 20, 1999).

[^89]: ^?^ Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band,
    *Order*, 13 FCC Rcd. 1533 (1997); Amendment of Part 90 of the
    Commission's Rules to Facilitate Future Development of SMR Systems
    in the 800 MHz Frequency Band, *Memorandum* *Opinion* *and* *Order*,
    12 FCC Rcd. 18,349 (1997).

[^90]: ^?^ 5 U.S.C. § 603(c).