# Before the

# Federal Communications Commission

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Part 90 of the Commission's ) PR Docket No. 93-144

Rules to Facilitate Future Development of )

SMR Systems in the 800 MHz Frequency )

Band )

)

)

**MEMORANDUM OPINION AND ORDER**

**Adopted: August 2, 2000 Released: August 4, 2000**

By the Commission:

1.  In this *Memorandum Opinion and Order*, we address the construction
    requirements that the Commission should impose on incumbent 800 MHz
    Specialized Mobile Radio (SMR) commercial licensees operating wide
    area systems[^1] that include Business and Industrial / Land
    Transportation (BI/LT) channels obtained prior to 1995 through
    inter-category sharing.[^2] For the reasons described herein, we
    will allow incumbent wide-area 800 MHz SMR licensees using BI/LT
    channels who were within their construction periods at the time of
    the decision in *Fresno Mobile Radio v. FCC* [^3] to apply the same
    construction requirements as were given by our recent *Fresno Remand
    Order*[^4] to wide-area incumbents operating on SMR channels.

## I. [Background]{.smallcaps}

2.  The 800 MHz band is divided into four channel groups -- SMR, General
    Category, BI/LT, and Public Safety, each with its own eligibility
    rules. 800 MHz SMR channels are designated for commercial use, while
    800 MHz BI/LT channels are designated for non-commercial internal
    use by the licensee. Prior to 1995, in certain circumstances, the
    Commission allowed SMR licensees to apply for BI/LT channels under
    inter-category sharing rules, which the SMR licensee could then use
    commercially despite the eligibility criteria that otherwise
    reserved these channels for private internal use.[^5] Inter-category
    sharing by SMR licensees was permitted if the BI/LT channel sought
    by the SMR licensee was unoccupied and if there were no SMR channels
    available in the licensee's service area.[^6]

3.  On December 23, 1999, in response to a remand of its *800 MHz SMR
    Reconsideration Order*[^7] by the District of Columbia Circuit in
    *Fresno*,[^8] the Commission released an order determining that
    incumbent 800 MHz SMR licensees who had obtained extended
    implementation ("EI") authority to build wide-area systems and who
    were within their extended construction periods at the time of the
    *Fresno* decision could apply construction requirements similar to
    those given to SMR Economic Area ("EA") licensees in the 800 MHz
    band.[^9] In the *Remand Order*, however, we granted relief only to
    wide-area incumbents operating on SMR channels. We did not address
    the construction status of wide-area incumbents operating on non-SMR
    channels obtained through inter-category sharing, because we
    concluded that this issue was beyond the scope of the
    proceeding.[^10] We indicated that we would determine the
    construction requirements for wide-area licensees on these channels
    in WT Docket No. 99-87, the pending Balanced Budget Act (BBA)
    proceeding.[^11]

4.  Upon further reflection, the Commission decided to determine the
    construction status of BI/LT channels used by wide-area 800 MHz SMR
    licensees in the *Fresno* *Remand* proceeding, rather than in the
    BBA proceeding. On March 2, 2000, therefore, we released a *Public
    Notice* seeking comment on whether we should adopt construction
    rules for wide-area incumbent 800 MHz SMR licensees using BI/LT
    channels that would be similar to those adopted in the *Remand
    Order* for wide-area SMR licensees using SMR channels.[^12] We also
    requested comment on the applicable construction requirements
    (*e.g.*, substantial service or population-based) for wide-area
    incumbent 800 MHz SMR licenses using BI/LT channels.[^13]

5.  In response to the *BI/LT Comment PN*, we received four comments and
    one reply comment.[^14] All but one of the commenters contend that
    wide-area 800 MHz SMR licenses using BI/LT channels should receive
    the same construction requirements established by the *Remand Order*
    for wide-area incumbents using SMR channels.[^15] In its comments,
    Southern Company (Southern) points to the *CMRS* *Third Report and
    Order* as evidence that the Commission has already determined that
    all CMRS licensees should have similar coverage requirements, and
    that there is no rational basis for singling out SMR licensees using
    BI/LT channels as the only CMRS providers that are not entitled to
    flexible coverage requirements.[^16] Nextel Communications, Inc.
    (Nextel) maintains that regulatory parity requires giving wide-area
    800 MHz SMR licenses using BI/LT channels the same flexible
    construction requirements as those given to other CMRS providers
    because they provide similar services.[^17] The American Mobile
    Telecommunication Association, Inc. (AMTA) maintains that all
    channels properly licensed to a wide-area SMR system under the
    Commission's rules are part of that system and should be subject to
    the same regulatory treatment.[^18] Finally, Chadmoore Wireless
    Group, Inc. (Chadmoore) supports revision to the construction
    requirements for wide-area SMR licensees using BI/LT channels only
    if the Commission provides similar construction relief to Chadmoore
    and certain other 800 MHz licensees that were expressly denied
    relief by the *Fresno Remand Order*.[^19]

# [II. Discussion]{.smallcaps}

6.  On the basis of the record before us, we conclude that wide-area
    incumbent 800 MHz SMR licensees operating on BI/LT channels are
    sufficiently similar to wide-area incumbent 800 MHz licensees
    operating on SMR channels that they should have the same flexibility
    with respect to construction requirements. The record demonstrates
    that some of the wide-area SMR licensees who received EI
    authorizations from the Commission are licensed to operate both on
    SMR channels and on BI/LT channels that they obtained through
    inter-category sharing for commercial use. In Southern's case, the
    vast majority of channels in its wide-area SMR system are BI/LT
    channels obtained through inter-category sharing. The record further
    demonstrates that wide-area SMR licensees such as Southern use
    inter-category BI/LT channels interchangeably with SMR channels, and
    that the BI/LT channels licensed on this basis are used to provide
    service that is similar, if not identical, to that provided on SMR
    channels by 800 MHz EA and incumbent wide-area SMR licensees.[^20]
    Accordingly, we agree with Southern, AMTA, and other supporting
    commenters that wide-area 800 MHz SMR licensees using BI/LT channels
    should be subject to the same construction requirements given to 800
    MHz SMR EA licensees by our rules and to eligible wide-area SMR
    licensees by our *Remand* *Order*.

7.  Recognizing that these licensees may already have constructed their
    systems in accordance with the requirements in place at the time
    (*i.e*., site-by-site, channel-by-channel), we will give eligible
    wide-area 800 MHz SMR licenses using BI/LT channels the option of
    complying with the site-specific construction requirements
    associated with their EI authorizations or applying the EA
    population coverage requirements to their wide-area systems. This
    option applies only to wide-area 800 MHz SMR licensees using BI/LT
    channels obtained through inter-category sharing. We believe that
    giving wide-area 800 MHz SMR licenses using BI/LT channels the
    choice between applying site-specific requirements or the EA
    coverage requirements will establish regulatory parity among all
    similarly situated wide-area 800 MHz SMR licensees.

8.  Chadmoore supports granting the *Fresno* relief to incumbent
    wide-area 800 MHz SMR licenses using BI/LT channels only if the
    Commission retroactively extends the relief outlined in the *Remand
    Order* to any 800 MHz SMR incumbent licensee that has ever sought EI
    authority, whether or not such authority was granted.[^21] We
    decline to address this issue in the context of this Order. As noted
    above, the *BI/LT Comment PN* sought comment only on the issue of
    the appropriate construction requirements for wide-area SMR licenses
    using BI/LT channels, and did not address Chadmoore's request for
    retroactive relief. Chadmoore has previously raised the same issue
    in its pending petition for reconsideration of the *Remand
    Order*,[^22] and we will address it in that context.

9.  **Construction Period.** We did not receive any comment on when the
    five-year construction period should begin for BI/LT channels
    licensed to wide-area SMR licensees that elect to apply the EA
    construction requirements. We therefore adopt the framework outlined
    in the *Remand* *Order*, which begins the construction period from
    the licensee's EI grant date. Therefore, an eligible wide-area SMR
    licensee that elects to apply the EA construction requirements to
    its BI/LT channels must have constructed and placed into operation a
    sufficient number of base stations to provide coverage to at least
    two-thirds of the population of its wide-area system, or must
    provide substantial service to the licensed area, within five years
    of EI grant plus the tolling period described below.[^23]

10. **Effect of Tolling on Construction Deadline.** For all licensees
    entitled to relief under this decision, we will add 546 days to
    their construction periods, representing the amount of time between
    the *Fresno* decision and the release of this order. Therefore, the
    applicable construction deadline for any eligible wide-area licensee
    that elects to apply the EA coverage requirements will be five years
    from the date of EI grant plus 546 days. Likewise, the applicable
    construction deadline for eligible licensees that do not elect the
    EA requirements will be 546 days after the EI deadline established
    in the *800 MHz Rejustification Orders*.[^24]

11. **Certification Filing.** A wide-area SMR licensee that is eligible
    for relief under this Order must certify in a filing with the Bureau
    that it has either met the EA construction requirements, as set out
    herein, or complied with the terms of its EI authorization. In
    addition to the certification, if a licensee chooses to meet the EA
    requirements for channels in the lower 230 channels using the
    substantial service option, it must demonstrate in the same filing
    with the Bureau how it is providing substantial service. All filings
    must be made within fifteen (15) days after the licensee's
    applicable construction deadline,[^25] as defined *supra*, or
    sixty (60) days after the publication of this *Memorandum Opinion
    and Order* in the Federal Register, whichever is later.

12. **Area of Coverage.** When determining if an eligible licensee has
    met a specific coverage requirement (*i.e*., covering two-thirds of
    the population), the population should be measured using the
    licensee's wide-area "footprint" as established in the licensee's EI
    rejustification submission. For this purpose, we adopt the
    guidelines in the *Remand* *Order*, *i.e.*, the licensee should
    compute the population covered within its footprint on a county
    basis using 1990 U.S. Census information.[^26] In cases in which the
    footprint does not align with county boundaries, the licensee should
    include the entire population of the county if the licensee covers
    any portion of it.

# [III. Conclusion]{.smallcaps}

13. For the reasons given above, any incumbent wide-area 800 MHz SMR
    licensee that uses BI/LT channels obtained through inter-category
    sharing and was still in its construction period as of the date of
    the *Fresno* decision may choose to apply either the existing
    site-by-site, channel-by-channel construction requirements or the
    alternative construction requirements set forth in this *Memorandum
    Opinion and Order*. Eligible licensees must certify in a filing with
    the Commission their compliance with one of the enumerated
    requirements within the later of fifteen days from their applicable
    construction benchmarks, as defined herein, or sixty days from the
    effective date of this decision.

# 

# [IV. Procedural Matters]{.smallcaps}

# A. Regulatory Flexibility Act

14. To assist the public in determining the possible impact on small
    entities of the requirements adopted in this *Memorandum Opinion and
    Order*, the Commission has prepared a Supplemental Final Regulatory
    Flexibility Analysis (Supplemental FRFA), set forth in Appendix B.
    The Office of Public Affairs, Reference Operations Division, will
    send a copy of the *Memorandum Opinion and Order*, including this
    Supplemental FRFA, to the Chief Counsel for Advocacy of the Small
    Business Administration, in accordance with the Regulatory
    Flexibility Act.[^27]

**B. Paperwork Reduction Act of 1995 Analysis**

15. This *Memorandum Opinion and Order* contains a modified information
    collection that the Commission is submitting to the Office of
    Management and Budget requesting clearance under the Paperwork
    Reduction Act of 1995.

**C. Further Information**

16. For further information concerning this *Memorandum Opinion and
    Order*, contact Don Johnson, Commercial Wireless Division, Policy &
    Rules Branch, Wireless Telecommunications Bureau at (202) 418-7240.

# [V. Ordering Clauses]{.smallcaps}

17. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i),
    incumbent wide-area 800 MHz Specialized Mobile Radio licensees using
    Business and Industrial / Land Transportation channels eligible for
    relief as described herein must comply with the terms of their
    extended implementation authorizations or apply the alternative
    construction requirements described herein.

18. IT IS FURTHER ORDERED that incumbent wide-area 800 MHz Specialized
    Mobile Radio licensees using Business and Industrial / Land
    Transportation channels eligible for relief as described herein must
    certify in a filing with the Wireless Telecommunications Bureau
    their compliance with the construction requirements as described
    herein within the later of fifteen days after the licensee's
    applicable construction deadline, as described herein, or sixty days
    after publication of this *Memorandum Opinion and Order* in the
    Federal Register.

19. IT IS FURTHER ORDERED that the extensions of Extended Implementation
    Authority granted by the Wireless Telecommunications Bureau to
    Southern Communications, Inc. and Nextel Communications, Inc. on
    December 4, 1998 and December 30, 1999, respectively, ARE MODIFIED
    to expire in accordance with the requirements outlined in Paragraph
    10 of this *Memorandum Opinion and Order*.

20. IT IS FURTHER ORDERED that the Commission's Consumer Information
    Bureau, the Reference Information Center, SHALL SEND a copy of this
    *Memorandum Opinion and Order*, including the Supplemental Final
    Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy
    of the Small Business Administration.

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

**APPENDIX A: LIST OF THE PARTIES**

#### Comments

American Mobile Telecommunications Association, Inc. (AMTA)

Chadmoore Wireless Group, Inc. (Chadmoore)

Nextel Communications, Inc. (Nextel)

Southern Company (Southern)

#### Reply Comments

Southern Company (Southern)

**APPENDIX B:**

**SUPPLEMENTAL FINAL REGULATORY FLEXIBILITY ANALYSIS**

To assist the public in determining the possible impact on small
entities of the provisions in this *Memorandum Opinion and Order*, the
Commission has prepared this Supplemental Final Regulatory Flexibility
Analysis (Supplemental FRFA).

**Need for, and Objectives of, the *Memorandum Opinion and Order***

This *Memorandum Opinion and Order* was initiated by public notice. The
Commission sought comment to determine whether incumbent wide-area 800
MHz SMR licensees granted extended implementation (EI) and operating on
non-SMR channels (*e.g*., Business and Industrial / Land Transportation
(BI/LT) channels) through inter-category sharing should receive
construction requirements similar to those received by Economic Area
(EA) 800 MHz SMR licensees and incumbent wide-area 800 MHz SMR licensees
granted relief on remand of the order of the United States Court of
Appeals for the District of Columbia in the case of *Fresno Mobile
Relays, Inc. v. Federal Communications Commission* (*Fresno*).[^28] In
*Fresno*, the court stated that the Commission had not adequately
explained why incumbent wide-area 800 MHz SMR licensees granted extended
implementation (EI) must construct and operate all channels at all sites
or lose the unconstructed channels, while Economic Area (EA) 800 MHz SMR
licensees need only provide coverage to a certain percentage of the
population within their licensed areas. This *Memorandum Opinion and
Order* allows incumbent wide-area 800 MHz SMR licensees operating on
BI/LT channels who were within their construction periods at the time of
the *Fresno* decision to choose between complying with the terms of
their EI authorizations or applying construction requirements similar to
those given to EA licensees. Therefore, this *Memorandum Opinion and
Order* (1) gives the incumbent licensees greater flexibility to leave
certain sites and channels unconstructed (for potential future use); (2)
establishes reasonable regulatory parity between incumbent wide-area
licensees and EA licensees in the 800 MHz SMR service, without
prejudicing the interests of either; and (3) provides the 800 MHz SMR
service with a degree of certainty for both current and future EA
licensees.

# Summary of Significant Issues Raised by Public Comment in Response to the Initial Regulatory Flexibility Analysis

As noted above, this *Memorandum Opinion and Order* was initiated by
public notice released by the Commission. Therefore, there was no
Initial Regulatory Flexibility Analysis.

# Description and Estimate of the Number of Small Entities to Which Rules Will Apply

The Regulatory Flexibility Act (RFA) directs agencies to provide a
description of and, where feasible, an estimate of the number of small
entities that may be affected by our rules.[^29] The RFA generally
defines the term \"small entity\" as having the same meaning as the
terms \"small business,\" \"small organization,\" and \"small
governmental jurisdiction.\"[^30] In addition, the term \"small
business\" has the same meaning as the term \"small business concern\"
under the Small Business Act.[^31] 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).[^32] A small
organization is generally \"any not-for-profit enterprise which is
independently owned and operated and is not dominant in its
field.\"[^33] The provisions adopted in this *Memorandum Opinion and
Order* will apply to approximately 30 - 35 current incumbent 800 MHz SMR
operators, most of which may be considered small entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements

This *Memorandum Opinion and Order* gives eligible wide-area 800 MHz SMR
licensees operating on BI/LT channels through inter-category sharing the
option of complying with the terms of their EI authorizations or
applying EA-type construction requirements to their wide area
footprints. If an eligible licensee chooses the former, it need only
comply with the requirements already imposed by the Commission's rules.
If an eligible licensee chooses the latter, it must determine if it
meets the coverage requirement. The licensee must then certify
compliance with these requirements in a filing with the Wireless
Telecommunications Bureau (Bureau) at its applicable construction
deadline. In lieu of the specific coverage requirements, an eligible
licensee may demonstrate that it is providing substantial service. If a
licensee chooses this option, it must provide in a filing with the
Bureau a description of how it is providing substantial service.

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

The action taken by this *Memorandum Opinion and Order* not only gives
eligible incumbent wide-area 800 MHz SMR licensees greater flexibility
to leave certain sites and channels unconstructed (for potential future
use), but also establishes reasonable parity between incumbent wide-area
licensees and EA licensees in the 800 MHz SMR service. Eligible
incumbent licensees need only report their compliance with the
construction requirements in the same fashion that EA 800 MHz licensees
do (*i.e*., in a certification and, if the substantial service option is
elected, a demonstration).

Report to Congress

The Commission shall send a copy of this Supplemental Final Regulatory
Flexibility Analysis, along with this *Memorandum Opinion and Order*, in
a report to Congress pursuant to the Small Business Enforcement Fairness
Act of 1996, 5 U.S.C. § 801(a)(1)(A). A copy of this Supplemental Final
Regulatory Flexibility Analysis will also be published in the Federal
Register.

[^1]: *See* 47 C.F.R. § 90.629. *See* *also* 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
    Remand*, 14 FCC Rcd. 21679, 21680, n.6 (¶ 4)(*Remand* *Order*).

[^2]: *See* 47 C.F.R. §§ 90.615(a)(1994), 90.621(e)(1994).

[^3]: *Fresno Mobile Radio, Inc., et al. v. FCC*, 165 F.3d 965 (D.C.
    Cir. 1999) (*Fresno*).

[^4]: *Remand Order* at 21679 (¶ 1).

[^5]: *See* 47 C.F.R. §§ 90.615(a) and 90.621(e) (1994); *see* *also*
    Inter-Category Sharing of Private Mobile Radio Frequencies in the
    806/821/851-866 MHz bands, *Order*, 10 FCC Rcd. 7350 (WTB: 1995)
    (*Inter-Category Freeze Order*). In April of 1995, the Wireless
    Telecommunications Bureau (Bureau) stopped accepting applications
    for such inter-category sharing.

[^6]: *Inter-Category Freeze Order*, 10 FCC Rcd. at 7350 (¶ 2).

[^7]: *See* 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*, 12 FCC Rcd. 9972
    (1997) (*800 MHz SMR Reconsideration Order*) (Commission affirmed
    decision that rejustified extended implementation ("EI") licensees
    would receive maximum of two years to complete construction of
    facilities, and any site-specific license within a licensee's
    wide-area "footprint" not constructed by the two-year deadline would
    automatically cancel, with unconstructed channels reverting to the
    EA licensee); *see also* *Remand* *Order* at 21682-3 (¶¶ 6-8).

[^8]: *See* *Fresno, supra,* n.3.

[^9]: *Remand* *Order* at 21679 (¶ 1). *Also, see Remand Order* at
    21679-21685 (¶¶ 2-10) for detailed background, including the
    procedural history of the *Fresno* matter, descriptions of the
    relevant groups of licensees, and explanations of the relevant sets
    of construction requirements.

[^10]: *Remand* *Order* at 21689 (¶ 20). The Bureau had previously
    granted the Southern Company and Nextel Communications, Inc.
    extensions of their extended implementation periods for their BI/LT
    channels until final rules regarding licensing of the BI/LT channels
    take effect in the context of the Commission's rulemaking proceeding
    to implement the Balanced Budget Act of 1997. *See* Southern Company
    Request for Waiver of Section 90.629 of the Commission\'s Rules,
    *Memorandum Opinion and Order*, 14 FCC Rcd. 1851 (WTB: 1998); In the
    Matter of Nextel Communications, Inc., *Order*, 15 FCC Rcd. 93 (WTB:
    1999). Since we now settle the issue of what construction
    requirements apply to these channels, the extensions granted to
    Southern and Nextel shall end on the dates that apply to each
    according to the formula set forth in paragraph ten of this
    *Memorandum Opinion and Order*.

[^11]: *See* Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934, as amended, *Notice of Proposed Rule
    Making*, WT Docket No. 99-87, 64 Fed. Reg. 23571 (1999).

[^12]: *See* *Public Notice*, Commission Requests Comment, Pursuant to
    *Fresno Mobile Radio, Inc. v. FCC*, on the Construction Requirements
    for Commercial, Wide-Area 800 MHz Licensees Operating on Non-SMR
    Channels Through Inter-Category Sharing, 15 FCC Rcd. 5436 (2000)
    (*BI/LT Comment PN*).

[^13]: *Id*.

[^14]: *See* Attachment A.

[^15]: *See* *Remand* *Order* at 21686 (¶ 12).

[^16]: Southern Comments at 5-8.

[^17]: Nextel Comments at 1-2, 5-6. Nextel also comments that the
    Commission should allow BI/LT licensees the flexibility to assign or
    transfer control of BI/LT spectrum to commercial users. *Id.* at
    2-3, 6-9. This issue is before the Commission in the BBA proceeding
    and we will address it in that context. *See* *Public Notice*,
    Wireless Telecommunications Bureau Seeks Comment on Licensing of
    PMRS channels in the 800 MHz Band for Use in Commercial SMR Systems,
    14 FCC Rcd. 11795 (1999); *see* *also* Implementation of Sections
    309(j) and 337 of the Communications Act of 1934 as Amended, WT
    Docket No. 99-87, *Notice of Proposed Rule Making*, 14 FCC Rcd. 5206
    (1999). In the *BI/LT Comment PN*, we specifically limited comments
    to the narrow issue of the appropriate construction requirements for
    wide-area 800 MHz SMR licenses using BI/LT channels.

[^18]: AMTA Comments at 5.

[^19]: Chadmoore Comments at 2-3.

[^20]: Nextel Comments at 5-6; Southern at 2-3, AMTA at 2.

[^21]: Chadmoore Comments at 2-3.

[^22]: Petition for Reconsideration, filed by Chadmoore Communications,
    Inc., dated January 23, 2000.

[^23]: *Remand* *Order* at 21686-7, (¶¶ 13-14). Because the BI/LT
    channels are interlaced with the "lower 80" SMR channels in the 800
    MHz band, the alternative construction requirements available to
    licensees granted relief under the present Order are the same as
    those outlined in the *Remand Order* for the "lower 230" channels
    (which include the "lower 80" SMR channels and the 150 General
    Category channels). *Id*. at 21687 (¶ 14). The requirements
    applicable to the "upper 200" channels are not relevant to the
    present *Memorandum Opinion and Order*.

[^24]: *Remand* *Order* at 21683, n.29 (¶ 7), *citing* 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
    (WTB: 1997), *recon*., 12 FCC Rcd. 18349 (WTB: 1997) (collectively,
    *800 MHz Rejustification Orders*).

[^25]: *See* 47 C.F.R. § 1.946(d).

[^26]: *Remand Order* at 21687 (¶ 14).

[^27]: *See* 5 U.S.C. § 601 *et. seq*.

[^28]: *Fresno Mobile Radio, Inc., et al. v. FCC*, 165 F. 3d 965 (D.C.
    Cir. 1999).

[^29]: 5 U.S.C. § 603(b)(3).

[^30]: 5 U.S.C. § 601(6).

[^31]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies \"unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register.\" 5 U.S.C. § 601(3).

[^32]: Small Business Act, 15 U.S.C. § 632 (1996).

[^33]: 5 U.S.C. § 601(4).