**Before the**

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of                 | ) | PS Docket No. 07-287         |
|                                  |   |                              |
| The Commercial Mobile Alert      | ) |                              |
| System                           |   |                              |
|                                  | ) |                              |
+----------------------------------+---+------------------------------+

THIRD REPORT AND ORDER

Adopted: August 7, 2008 Released: August 7, 2008

By the Commission:

Table of Contents

Heading Paragraph \#

I. INTRODUCTION 1

II\. BACKGROUND 5

III\. DISCUSSION 7

A. Notification by CMS Providers Electing Not to Transmit Alerts 7

1\. Notification at Point of Sale 7

2\. Notifications to Existing Subscribers 18

3\. Timing of Notification 25

B. Election Procedures 27

C. Other Issues 35

1\. Subscriber Termination of Service 35

2\. Subscriber Alert Opt-Out 38

3\. Cost Recovery 43

4\. CMAS Deployment Timeline 47

IV\. PROCEDURAL MATTERS 55

A. Final Regulatory Flexibility Act Analysis 56

B. Final Paperwork Reduction Act of 1995 Analysis 56

C. Congressional Review Act Analysis 57

D. Alternative Formats 58

E. Filing Requirements 59

V. EFFECTIVE DATE 61

VI\. ORDERING CLAUSES 65

APPENDIX A: Final Regulatory Flexibility Analysis

APPENDIX B: List of Commenters\
APPENDIX C: Final Rules

# INTRODUCTION

1.  This Commercial Mobile Alert System Third Report and Order (CMAS
    Third Report and Order) represents our next step in establishing a
    Commercial Mobile Alert System (CMAS), under which Commercial Mobile
    Service (CMS) providers[^1] may elect to transmit emergency alerts
    to the public. We take this step pursuant to the mandate of Section
    602(b) of the WARN Act,[^2] which requires the Commission to adopt
    rules allowing any CMS provider to transmit emergency alerts to its
    subscribers; requires CMS providers that elect, in whole or in part,
    not to transmit emergency alerts to provide clear and conspicuous
    notice at the point of sale of any CMS devices that they will not
    transmit such alerts via that device; and requires CMS providers
    that elect not to transmit emergency alerts to notify their existing
    subscribers of their election.

2.  In this CMAS Third Report and Order, we adopt rules implementing
    Section 602(b) of the WARN Act. Specifically, we:

-   adopt notification requirements for CMS providers that elect not to
    participate, or to participate only in part, with respect to new and
    existing subscribers;

-   adopt procedures by which CMS providers may elect to transmit
    emergency alerts and to withdraw such elections;

-   adopt a rule governing the provision of alert opt-out capabilities
    for subscribers;

-   allow participating CMS providers to recover costs associated with
    the development and maintenance of equipment supporting the
    transmission of emergency alerts; and

-   adopt a compliance timeline under which participating CMS providers
    must begin CMAS deployment.

3.  By adopting these rules, we take another significant step towards
    achieving one of our highest priorities -- to ensure that all
    Americans have the capability to receive timely and accurate alerts,
    warnings and critical information regarding disasters and other
    emergencies irrespective of what communications technologies they
    use. As we have learned from recent disasters, including Hurricane
    Katrina in 2005 and the recent floods that have impacted our
    Midwestern and Southern states, it is essential to enable Americans
    to take appropriate action to protect their families and themselves
    from loss of life or serious injury. This CMAS Third Report and
    Order also is consistent with our obligation under Executive Order
    13407[^3] to "adopt rules to ensure that communications systems have
    the capacity to transmit alerts and warnings to the public as part
    of the public alert and warning system,"[^4] and our mandate under
    the Communications Act to promote the safety of life and property
    through the use of wire and radio communication.[^5]

4.  This CMAS Third Report and Order is the latest step in the
    Commission's ongoing effort to enhance the reliability, resiliency,
    and security of emergency alerts to the public by requiring that
    alerts be distributed over diverse communications platforms. In the
    2005 EAS First Report and Order, we expanded the scope of the
    Emergency Alert System (EAS) from analog television and radio to
    include participation by digital television and radio broadcasters,
    digital cable television providers, Digital Audio Radio Service
    (DARS), and Direct Broadcast Satellite (DBS) systems.[^6] As we
    noted in the Further Notice of Proposed Rulemaking that accompanied
    the EAS First Report and Order, wireless services are becoming equal
    to television and radio as an avenue to reach the American public
    quickly and efficiently.[^7] As of June 5, 2008, the wireless
    industry reports that approximately 260 million Americans subscribed
    to wireless services.[^8] Wireless service has progressed beyond
    voice communications and now provides subscribers with access to a
    wide range of information critical to their personal and business
    affairs. In times of emergency, Americans increasingly rely on
    wireless telecommunications services and devices to receive and
    retrieve critical, time-sensitive information. A comprehensive
    wireless mobile alerting system would have the ability to alert
    people on the go in a short timeframe, even where they do not have
    access to broadcast radio or television or other sources of
    emergency information. Providing critical alert information via
    wireless devices will ultimately help the public avoid danger or
    respond more quickly in the face of crisis, and thereby save lives
    and property.

# BACKGROUND

5.  On October 13, 2006, the President signed the Security and
    Accountability For Every Port (SAFE Port) Act into law.[^9] Title VI
    of the SAFE Port Act, the WARN Act, establishes a process for the
    creation of the CMAS whereby CMS providers may elect to transmit
    emergency alerts to their subscribers. The WARN Act requires that we
    undertake a series of actions to accomplish that goal, including
    requiring the Commission, by December 12, 2006 (within 60 days of
    enactment) to establish and convene an advisory committee to
    recommend technical requirements for the CMAS.[^10] Accordingly, we
    formed the Commercial Mobile Service Alert Advisory Committee
    (CMSAAC), which had its first meeting on December 12, 2006.[^11] The
    WARN Act further required the CMSAAC to submit its\
    recommendations to the Commission by October 12, 2007 (one year
    after enactment).[^12] The CMSAAC submitted its report on that date.

6.  On December 14, 2007, we released a Notice of Proposed Rulemaking
    requesting comment on issues related to implementation of Section
    602 of the WARN Act. [^13] The Commission has received over 60
    comments and ex parte filings.[^14] On April 9, 2008, we released a
    First Report and Order,[^15] adopting technical standards,
    protocols, processes and other technical requirements "necessary to
    enable commercial mobile service alerting capability for commercial
    mobile service providers that voluntarily elect to transmit
    emergency alerts."[^16] On July 8, 2008, we adopted a Second Report
    and Order establishing rules requiring noncommercial educational and
    public broadcast television station licensees and permittees to
    install necessary equipment and technologies on, or as part of, the
    broadcast television digital signal transmitter to enable the
    distribution of geographically targeted alerts by CMS providers that
    have elected to participate in the CMAS.[^17] This Third Report and
    Order implements further WARN Act requirements consistent with the
    Commission's goal of establishing an effective and efficient CMAS.

# DISCUSSION

## Notification by CMS Providers Electing Not to Transmit Alerts

### Notification at Point of Sale

7.  *Background.* Section 602(b)(1) provides that "within 120 days after
    the date on which \[the Commission\] adopts relevant technical
    standards and other technical requirements pursuant to subsection
    (a), the Commission shall complete a proceeding to allow any
    licensee providing commercial mobile service ... to transmit
    emergency alerts to subscribers to, or users of, the commercial
    mobile service provided by such licensee."[^18] Pursuant to this
    section, the Commission must "require any licensee providing
    commercial mobile service that elects, in whole or in part, under
    paragraph (2) \[Election\] not to transmit emergency alerts to
    provide clear and conspicuous notice at the point of sale of any
    devices with which its commercial mobile service is included, that
    it will not transmit such alerts via the service it provides for the
    device."[^19]

8.  In its October 12, 2007 report, the CMSAAC recommended that carriers
    retain the discretion to determine how to provide specific
    information regarding (1) whether or not they offer wireless
    emergency alerts, and (2) which devices are or are not capable of
    receiving wireless emergency alerts, as well as how to tailor
    additional notice, if necessary, for devices offered at other points
    of sale.[^20] Nevertheless, the CMSAAC recommended specific language
    to be used by carriers that elect, in part or in whole, not to
    transmit emergency alerts.[^21] With respect to carriers who intend
    to transmit emergency alerts "in part," the CMSAAC-recommended
    language reads as follows:

> Notice Regarding Transmission of Wireless Emergency Alerts (Commercial
> Mobile Alert Service)
>
> \[\[WIRELESS PROVIDER\]\] has chosen to offer wireless emergency
> alerts within portions of its service area, as defined by the terms
> and conditions of its service agreement, on wireless emergency alert
> capable devices. There is no additional charge for these wireless
> emergency alerts.
>
> Wireless emergency alerts may not be available on all devices or in
> the entire service area, or if a subscriber is outside of the
> \[\[WIRELESS PROVIDER'S\]\] service area. For details on the
> availability of this service and wireless emergency alert capable
> devices, please ask a sales representative, or go to \[\[INSERT
> WEBSITE URL\]\].
>
> Notice required by FCC Rule XXXX (Commercial Mobile Alert Service).

The CMSAAC recommended the following language for carriers that "in
whole" elect not to transmit emergency alerts:

> NOTICE TO NEW AND EXISTING SUBSCRIBERS REGARDING TRANSMISSION OF
> WIRELESS EMERGENCY ALERTS (Commercial Mobile Alert Service)
>
> \[\[WIRELESS PROVIDER\]\] presently does not transmit wireless
> emergency alerts.
>
> Notice required by FCC Rule XXXX (Commercial Mobile Alert Service).

In the *CMAS NPRM*, we sought comment on the CMSAAC recommendation and
whether it sufficiently addressed the requirements of the statute.[^22]
We also sought comment on the CMSAAC's suggestion that, because the WARN
Act does not impose a notice requirement on CMS providers who have
elected to participate in full, the Commission should not adopt a notice
requirement for those providers.[^23] We also sought comment on the
definition of "any point of sale," which we specified as any means --
retail, telephone, or Internet-based -- by which a service provider
facilitates and promotes its services for sale to the public. [^24] We
suggested that third party, separately branded resellers also would be
subject to point of sale notification requirements.[^25]

9.  We also requested comment on what constitutes clear and conspicuous
    notice at the point of sale. For example, we asked whether a general
    notice in the form of a statement attesting to the election not to
    provide emergency alerts would satisfy the statutory requirement and
    whether the statutory language requires the posting of a general
    notice in clear view of subscribers in the service provider's
    stores, kiosks, third party reseller locations, web site
    (proprietary or third party), and any other venue through which the
    service provider's devices and services are marketed or sold.[^26]
    We also asked what form the general notice should take.[^27] In
    addition, we asked whether a service provider meets the condition of
    clear and conspicuous notification if the service provider requires
    subscribers to read and indicate their understanding that the
    service provider does not offer emergency alerts.[^28]

10. *Comments*. Many commenters supported the CMSAAC's recommendation
    that CMS providers be afforded discretion in determining how best to
    provide notice at the point of sale.[^29] For example, SouthernLINC
    argues that "general guidance from the FCC regarding suggested
    format and procedures for providing notice to subscribers would be
    sufficient to meet the requirements of the WARN Act," but that we
    should "refrain from adopting specific requirements for each
    carrier, regardless of the carrier's size, business model, or
    customer preferences."[^30] CTIA agrees, stating that "a single type
    of notice is not appropriate in all situations," and that different
    points of sale and business circumstances lend themselves more
    readily to particular notice solutions.[^31] CTIA further argues
    that, rather than focusing on the mechanics of the notice, the
    Commission should encourage wireless providers to "furnish customers
    with the information they need to make an informed decision."[^32]
    CTIA argues that a "combination of business incentive and statutory
    requirements" will ensure that customers are given adequate notice
    at the point of sale.[^33] This is particularly the case, argues
    CTIA, where a wireless carrier intends to deploy the CMAS on a
    market-by-market basis, in which case a standardized message "may
    lead to confusion and dissatisfaction" among customers.[^34]
    MetroPCS argues that any discretion given to carriers with respect
    to the provision of "clear and conspicuous" notice also should
    extend to how carriers provide notice through their "indirect
    distribution channels," and that since indirect distribution is not
    owned or operated by the carriers, "carriers should not be held
    responsible for the indirect distribution retail outlet's failure to
    follow a carrier's directives, provided that the provider has put
    the distributor on notice and took reasonable steps to ensure prompt
    compliance."[^35]

11. Other commenters from the wireless industry also expressed support
    for the CMSAAC's recommended text language.[^36] MetroPCS supports
    the adoption of a "safe harbor" under which carriers that use the
    model text developed by the CMSAAC are deemed to have provided
    adequate notice.[^37] Wireless industry commenters also agreed with
    the CMSAAC that CMS providers electing to participate in the CMAS
    should not be required to disclose such participation to
    subscribers.[^38] AAPC, for example, argues that such a requirement
    is unnecessary because participating CMS providers will have every
    incentive to advertise and promote the fact of their
    participation.[^39]

12. Other commenters argue that the Commission should adopt specific
    notice requirements. California Public Utilities Commission (CPUC)
    recommends that CMS providers be required to provide notice to and
    receive confirmations from new customers acknowledging their
    understanding that the service provider does or does not offer
    emergency alerts.[^40] CPUC also recommends that notices be in large
    print and placed prominently on placards or their equivalent and
    that each device sold by service providers should include a notice
    that emergency alerts are or are not included as a feature of the
    device or the service provider's service.[^41] Wireless
    Rehabilitation Engineering Research Center argues that such
    procedures should also include audio and video procedures (*e.g.*,
    provision of CMAS information in large print, Braille and audio
    formats) so that persons with disabilities will be fully informed
    about the CMAS.[^42] It also recommends that CMS providers be
    required to instruct subscribers that technical limitations might
    prevent alert message reception even in areas with signal coverage
    and that such no-alert areas should be detailed in coverage
    maps.[^43]

13. *Discussion.* As an initial matter, we find that the statute does
    not require CMS providers to provide notice in the event they elect
    to transmit alerts to all subscribers. For those carriers that have
    elected in whole or in part not to transmit emergency alerts, we
    find that the statute requires that they "provide clear and
    conspicuous notice at point-of sale" of their non-election or
    partial election to provide emergency alerts. Additionally, we find
    that the statute provides specific and limiting guidance. Therefore,
    we agree with commenters that a one-size-fits-all approach to
    notification may not adequately address the range of methods by
    which service providers communicate with their customers.[^44]
    Nevertheless, the CMSAAC has crafted plain language notifications
    that we believe are consistent with the intent of the statute and
    which convey concisely a service provider's non-election or partial
    election at the point of sale. We find that this language will
    convey sufficient information and serve as the minimum standard for
    clear and conspicuous notice under the WARN Act. Our decision
    allows, but does not require, CMS providers to provide their
    customers with additional information relating to CMAS.
    Specifically, CMS providers electing to transmit alerts "in part"
    shall use the following notification, at a minimum:

> Notice Regarding Transmission of Wireless Emergency Alerts (Commercial
> Mobile Alert Service)
>
> \[\[CMS PROVIDER\]\] has chosen to offer wireless emergency alerts
> within portions of its service area, as defined by the terms and
> conditions of its service agreement, on wireless emergency alert
> capable devices. There is no additional charge for these wireless
> emergency alerts.
>
> Wireless emergency alerts may not be available on all devices or in
> the entire service area, or if a subscriber is outside of the \[\[CMS
> PROVIDER's\]\] service area. For details on the availability of this
> service and wireless emergency alert capable devices, please ask a
> sales representative, or go to \[\[CMS PROVIDER'S URL\]\].
>
> Notice required by FCC Rule 47 C.F.R. § 10.240 (Commercial Mobile
> Alert Service).

CMS providers electing in whole not to transmit alerts shall use the
following notification language, at a minimum:

> NOTICE TO NEW AND EXISTING SUBSCRIBERS REGARDING TRANSMISSION OF
> WIRELESS EMERGENCY ALERTS (Commercial Mobile Alert Service)
>
> \[\[CMS PROVIDER\]\] presently does not transmit wireless emergency
> alerts.
>
> Notice required by FCC Rule 47 C.F.R. § 10.240 (Commercial Mobile
> Alert Service).

14. We define the point of sale as the physical and/or virtual
    environment in which a potential subscriber judges the products and
    services of the service provider and the point at which the
    potential subscriber enters into a service agreement with the
    service provider. Thus, we adopt the CMSAAC recommended language as
    a minimum standard of necessary information for use by all service
    providers and their agents in point-of-sale venues, which shall
    include stores, kiosks, third party reseller locations, web sites
    (proprietary and third party), and any other venue through which the
    service provider's devices and services are marketed or sold.
    Section 601(b)(1)(2) specifically places the responsibility of
    notification on the CMS provider. Therefore, CMS providers are
    responsible for ensuring that clear and conspicuous notice is
    provided to customers at the point-of-sale, regardless of whether
    third party agents serve as the distribution channel.

15. We expect service providers selling through an indirect distribution
    channel may meet their statutory requirements through appropriate
    agency contract terms with their distribution partners or by other
    reasonable means. However, the statute assigns responsibility for
    conveying clear and conspicuous notice to CMS providers and,
    consistent with this statutory language, we decline to shift this
    burden onto a non-Commission licensed party. Therefore, CMS
    providers are solely responsible for ensuring that clear and
    conspicuous notice is provided to customers at the point-of-sale.

16. We decline at this time to adopt specific requirements, such as
    those put forth by CPUC (*e.g.*, certain sized posters, type-size,
    brochures) for displaying the notification, preferring instead to
    allow carriers to create and position notifications that are
    consistent with the marketing and service notification methodologies
    in use at any given time by the service provider. Similarly, with
    respect to Wireless RERC's concerns that procedures be mandated that
    include audio and video notifications so that persons with
    disabilities will be fully informed about a service provider's
    election in part or in whole not to transmit emergency alerts, we
    believe that service providers will make use of existing facilities
    and procedures to convey the necessary notification. The statute
    requires clear and conspicuous notification, which we interpret to
    include the provision of notification that takes into account the
    needs of persons with disabilities. Thus, clear and conspicuous
    notification for persons with disabilities would include enhanced
    visual, tactile or auditory assistance in conveying the required
    notification. However, we agree with commenters and the CMSAAC that
    wireless service providers are in the best position to determine the
    proper method of providing this notice and leave it to the
    discretion of providers to provide clear and conspicuous notice at
    the point-of-sale.[^45] In addition, our decision allows, but does
    not require, additional information regarding the technical
    limitations of CMAS alerts, as requested by Wireless RERC (*i.e.*,
    that technical limitations might prevent alert message reception
    even in areas with signal coverage).

17. We disagree with the concerns raised by some commenters that,
    without a written acknowledgement from a subscriber, notification
    requirements under the WARN Act are not met.[^46] The statute
    requires the CMS provider to provide clear and conspicuous notice,
    but does not require the Commission to mandate an affirmative
    response from customers. Service agreements usually define the
    carrier's and subscriber's rights and responsibilities and describe
    any limitations of the service or products offered. We expect that
    many CMS providers will provide clear and conspicuous notice in
    their service agreements. To the extent they do so, subscribers in
    effect acknowledge such notice by signing the agreement. However, we
    do not require that this notification be placed into a service
    agreement, nor do we require that CMS providers otherwise obtain
    subscriber acknowledgements. We find that by implementing the
    statutory requirement of clear and conspicuous notice at the point
    of sale, adopting an acknowledgment requirement would be
    unnecessary.

### Notifications to Existing Subscribers

18. *Background.* Section 602(b)(1)(C) states that the Commission shall
    "require any licensee providing commercial mobile service that
    elects under paragraph (2) not to transmit emergency alerts to
    notify its existing subscribers of its election."[^47] In the *CMAS
    NPRM*, we asked whether CMS providers should be granted the
    discretion to determine how to provide notice of non-election,
    including the methods and duration of a service provider's
    notification to existing subscribers of an election. We also asked
    about the use of existing marketing and billing practices for
    purposes of notification, and whether service providers should be
    required to notify existing subscribers by sending them a separate
    notice of a change in their terms and conditions of their service.
    [^48] In addition, we asked how service providers should notify
    pre-paid customers. We also asked whether service providers should
    be required to demonstrate to the Commission that they have met this
    requirement and, if so, how. Finally, we asked whether service
    providers should be required to maintain a record of subscribers who
    have acknowledged receipt of the service provider's
    notification.[^49]

19. *Comments.* Wireless service providers generally argue that the
    Commission should provide CMS providers with flexibility regarding
    notice to existing subscribers, and oppose any requirement that CMS
    providers maintain records of subscriber acknowledgements of the
    notification.[^50] RCA argues, for example, that a requirement to
    maintain records of subscriber acknowledgement exceeds the authority
    granted to the Commission by the WARN Act, which only requires the
    provision of notice.[^51] SouthernLINC opposes "the imposition of
    any burdensome notice or record keeping requirements on regional and
    small, rural carriers."[^52] Further, SouthernLINC argues that it
    would be "unrealistic to expect every customer to affirmatively
    respond to notices and that it would be counterproductive for
    carriers to expend tremendous resources in tracking down customers
    that choose not to respond."[^53] MetroPCS argues that the need for
    flexibility is particularly necessary in the case of pre-paid
    carriers, who offer flat-rate service and who may not send written
    bills to their customers or keep current addresses of their
    customers on-file.[^54] According to MetroPCS, it corresponds with
    its customers mainly through short message service (SMS) messages
    delivered to the handsets of its subscribers.[^55]

20. Wireless RERC argues that CMS providers should be required to "fully
    inform" subscribers about the alert capabilities of the service
    provider's network and wireless devices, including pre-paid
    devices.[^56] Further, it argues that labeling on wireless devices
    or packages of wireless devices should be available in alternative
    formats, such as large print to aid those with visual impairments,
    and the Commission should establish "CMAS standards of performance
    consistent with the Americans with Disabilities Act and other
    federal regulations regarding providing services to people with
    disabilities."[^57] CPUC urges the Commission to require, at a
    minimum, notification requirements similar to that required for VoIP
    providers for E911 service, recommending that any notice requirement
    be flexible so as to allow for the use of direct mailings, paper
    bills, emails and website notices.[^58] It argues that CMS providers
    should also be required to verify that acknowledgment was received
    from incumbent customers at a time and date designated by the
    Commission but prior to CMAS implementation, including requiring
    customers "to indicate their understanding that the service provider
    does not offer emergency alerts and should be required to sign a
    document (or otherwise demonstrate, such as through electronic
    acceptance) indicating that they have read and understood the notice
    \[and\] \[t\]his notice should in no case be combined with other
    direct mailings containing marketing materials."[^59] In those cases
    where subscribers declined to receive direct mailings from service
    providers, CPUC suggests that carriers be required to demonstrate
    that they have taken reasonable steps to inform subscribers of the
    decision not to transmit alert messages.[^60]

21. CTIA disagrees with the CPUC's notification recommendations (modeled
    after the Commission's VoIP 9-1-1 notification requirements) arguing
    that, "such rules cannot serve as a guideline because they were
    created in response to a specific issue that is inapplicable to
    CMAS."[^61] CTIA argues that those notice requirements "were
    tailored to the notion that customers may have faulty assumptions
    about the availability of 911 services on their IP-enabled phones,"
    whereas that concern is not present for CMAS because clear and
    conspicuous notice will be given to customers at the point of
    sale.[^62]

22. *Discussion.* We again base our analysis on the explicit language of
    section 602(b)(1)(C), which requires any licensee providing
    commercial mobile service that elects not to transmit emergency
    alerts "to notify its existing subscribers of its election." As an
    initial matter, we find that section 602(b)(1)(C) is not limited to
    CMS providers that elect not to provide emergency alerts in whole.
    Rather, we interpret section 602(b)(1)(C) in concert with section
    602(b)(1)(B) to also require CMS providers that elect not to
    transmit emergency alerts in part to notify existing subscribers of
    their election. Thus, we require CMS providers to notify existing
    subscribers of their election, in whole or in part, not to transmit
    emergency alerts. Likewise, we require that this notice be "clear
    and conspicuous." Additionally, as in the case of notice at
    point-of-sale, clear and conspicuous notification for persons with
    disabilities would include enhanced visual, tactile or auditory
    assistance in conveying the required notification.

23. Turning next to how CMS providers are to make such notifications, we
    find that the way CMS providers typically convey changes in terms
    and conditions to their subscribers to be sufficiently analogous.
    Thus, while an election not to transmit alerts, in whole or in part,
    is not necessarily a change in an existing term or condition, we
    require service providers to notify existing subscribers of their
    election by means of an announcement amending the existing
    subscriber's terms and conditions of service agreement. We agree
    with commenters who suggest that service providers should be given
    discretion in determining how to provide such notice to existing
    subscribers.[^63] Service providers regularly use various means to
    announce changes in service to subscribers, including, for instance,
    direct mailing, bill inserts, and other billing-related
    notifications. In order to ensure that subscribers receive the
    necessary notification, we require service providers to use, at a
    minimum, the notification language recommended by the CMSAAC that we
    have adopted for use in point of sale notification.

24. At this time, we will not require service providers to obtain a
    written or verbal acknowledgement from existing subscribers. We
    conclude that Section 602(b)(1)(C) does not require an affirmative
    response from subscribers. Rather, it requires only that a provider
    notifies customers of its election not to participate. We agree with
    SouthernLINC that it would be unrealistic and unwarranted to require
    an affirmative response from every subscriber.[^64] While we
    recognize that some service providers allow their subscribers to opt
    out of receiving any information from the service provider, this
    usually applies to additional marketing or advertising
    communications and not to communications relating to changes in the
    terms and conditions of service. Finally, we recognize that service
    providers with pre-paid subscribers generally do not send a monthly
    billing statement to them and in some cases limit any customer
    notification to SMS messages. Further, service providers may not
    maintain customer information that can be used to communicate a
    change to the terms and conditions of service. Accordingly, in order
    to ensure that pre-paid customers are notified of the carrier's
    election, we require carriers to communicate the election through
    any reasonable means at their disposal, including, but not limited
    to, mailings, text messaging, and SMS messaging.

### Timing of Notification

25. *Background.* Under section 602(b)(2)(A), "within 30 days after the
    Commission issues its order under paragraph (1), each licensee
    providing commercial mobile service shall file an election with the
    Commission with respect to whether or not it intends to transmit
    emergency alerts."[^65] As discussed above, carriers electing not to
    transmit, in part or in whole, are required to notify prospective
    and existing subscribers of their election, but the statute does not
    state that this notification shall be concomitant with the carrier's
    election on its intent to transmit emergency alerts. The record is
    silent on the timing of notification. Significantly, on May 30,
    2008, the Department of Homeland Security\'s Federal Emergency
    Management Agency (FEMA) announced that it will perform the CMAS
    Alert Aggregator/Gateway role.[^66] FEMA noted, however, that the
    Alert Aggregator/Gateway system has not yet been designed or
    engineered,[^67] and did not indicate when it would make the
    Government Interface Design specifications available to the other
    CMAS participants. Further, the CMSAAC estimated that development,
    testing and deployment would require 18-24 months from
    standardization of the alerting protocol. Thus, a period of time
    will pass between the election filings and the commercial
    availability of CMAS.

26. *Discussion.* Accordingly, we find that it would not be in the
    public interest to require the commencement of customer notification
    upon the filing of elections with the Commission and well in advance
    of the commercial availability of CMAS. A principal goal of the
    customer notification requirement is to ensure that, upon the
    commercial availability of CMAS and the expected marketing of this
    service and supporting handsets by carriers that have elected to
    provide alerts, prospective and existing subscribers of carriers
    electing not to transmit alerts are fully informed of the
    limitations of that carrier's alerting capabilities and better able
    to make an informed decision about which carriers can provide
    critical public safety notifications. We believe the relevance of
    this decision may be lost if notification is delivered to
    prospective and existing subscribers too far in advance of CMAS'
    commercial availability. Further, by not tying the customer
    notification requirements to the 30-day election requirement, we
    provide time for CMS providers that may initially elect not to
    provide alerting capability to alter such decisions, particularly
    when the future availability and details of the CMAS Alert
    Aggregator/Gateway are made known. Because commercial availability
    of alerts is dependent upon the activation of the Alert
    Aggregator/Gateway system to support transmission of emergency
    alerts, we find it reasonable to require customer notification upon
    the availability of the transmission of emergency alerts. Thus, we
    will require CMS providers that have elected, in whole or in part,
    not to provide alerts to provide point of sale and existing
    subscriber notifications as described *supra* to be made no later
    than 60 days following an announcement by the Commission that the
    Alert Aggregator/Gateway system is operational and capable of
    delivering emergency alerts to participating CMS providers. We find
    that this policy is consistent with the WARN Act. Although section
    602(b)(2)(A) of the WARN Act requires that CMS licensees file an
    election with the Commission within 30 days after the Commission
    issues this Third Report and Order, section 602(b)(1)(B) does not
    otherwise provide a specific deadline by which CMS providers must
    provide notice to subscribers regarding non-election.

## Election Procedures

27. *Background.* Sections 602(b)(2)(A), (B), and (D) establish certain
    requirements for CMS providers electing to provide or not to provide
    emergency alerts to subscribers. In several instances, the statute
    requires service providers to submit notifications to the Commission
    indicating their election, non-election, or their withdrawal from
    providing emergency alerts. Section 602(b)(2)(A) requires that,
    "within 30 days after the Commission issues its order under
    \[section 602(b)\], each licensee providing commercial mobile
    service shall file an election with the Commission with respect to
    whether or not it intends to transmit emergency alerts."[^68]
    Similarly, under section 602(b)(2)(B), a service provider that
    elects to transmit emergency alerts must "notify the Commission of
    its election" and "agree to transmit such alerts in a manner
    consistent with the technical standards, protocols, procedures, and
    other technical requirements implemented by the Commission."[^69]
    Further, section 602(b)(2)(D) requires the Commission to establish
    procedures relating to withdrawal of an election and the filing of
    late election notices with the Commission.[^70] Under section
    602(b)(2)(D)(i), "the Commission shall establish a procedure for a
    commercial mobile service licensee that has elected to transmit
    emergency alerts to withdraw its election without regulatory penalty
    or forfeiture upon advance written notification of the withdrawal to
    its affected subscribers."[^71] Finally, section 602(b)(2)(D)(ii)
    requires "the Commission to establish a procedure for a commercial
    mobile service licensee to elect to transmit emergency alerts at a
    date later than provided in subparagraph (A)."[^72]

28. In the *CMAS NPRM*, we sought comment on all of these filing
    requirements. Specifically, we asked for comment on the most
    efficient method for accepting, monitoring and maintaining service
    provider election and withdrawal information.[^73] With respect to
    the initial election, we asked what CMS providers should provide in
    their filing if they indicate an intention to provide emergency
    alerts. For example, we sought comment on the CMSAAC's
    recommendation that, at a minimum, a CMS provider should explicitly
    commit to support the development and deployment of technology for
    the following: the "C" interface,[^74] the CMS provider
    Gateway,[^75] the CMS provider infrastructure,[^76] and the mobile
    device with CMAS functionality. Noting that the CMSAAC suggested
    that the required technology may not be in place for some time, we
    asked whether electing CMS providers should specify when they will
    be able to offer mobile alerting.[^77]

29. In addition, we sought comment about how service providers should
    notify the Commission and attest to their adoption of the
    Commission's standards, protocols, procedures and other technical
    requirements. We asked whether we should require electronic filing
    of the submission and what CMS providers should submit in their
    report to the Commission if they indicate an intention to provide
    emergency alerts.[^78] Finally, we sought comment on the proper
    mechanism for service providers to file a withdrawal of election
    with the Commission. We identified two scenarios: first, where the
    service provider has elected to provide emergency alerts, but does
    not build the infrastructure, and second, where the service provider
    elects to provide emergency alerts and does so to all or some
    portion of its coverage area, but later chooses to discontinue the
    service. With respect to the latter scenario, we asked how much
    advance notification to subscribers the Commission should require
    prior to the service provider's withdrawal. We also asked what
    methods service providers should use to notify all existing
    subscribers at the service provider's various points of sale as well
    as whether the Commission should impose the same set of requirements
    considered under section 602(b)(1)(C) regarding notification to
    existing subscribers and potential subscribers that a service
    provider has elected not to provide emergency alerts.[^79]

30. *Comments*. Wireless stakeholders agreed with the CMSAAC's
    recommendation regarding what notice service providers should
    include in their elections.[^80] For example, MetroPCS argues that
    the most effective way to provide notice to the Commission of a
    carrier's election should be through a written election provided at
    the time the election is required and, thereafter, within a
    reasonable time after the carrier decides to change its
    election.[^81] For CMS providers commencing service after the
    initial election deadline, MetroPCS recommends the submission of
    elections within 90 days after the licensee begins to market service
    in the licensed area.[^82] MetroPCS suggests that the election
    notice be on a license-by-license basis, but with the flexibility to
    consolidate elections over all or a portion of the CMS providers'
    licenses.[^83] MetroPCS recommends that service providers deciding
    to change their elections "should be required to provide written
    notice to the Commission within 30 days of effectuating the change
    in election."[^84]

31. Some commenters suggest that the Commission maintain a register
    listing the carriers that elect to participate as well as those that
    do not.[^85] CPUC argues that it is "essential" that states have
    access to CMS providers election notices and that such notices
    should include, at a minimum, the "C" reference point, the CMS
    provider Gateway, the CMS provider infrastructure, the mobile device
    with CMAS functionality and any geographic variations in the
    commitment to provide emergency alerts.[^86] CPUC further argues
    that CMS providers should also be required to file a report
    attesting to their adoption of the Commission's standards,
    protocols, procedures, and other technical requirements, and
    reporting on the CMS providers' arrangements for working with the
    Alert Aggregator, their technical connections with the Alert
    Gateway, the links used to provide that connection and a description
    of their technical capability for providing state, regional and
    local alerts.[^87] Verizon Wireless opposes any requirement to
    provide detailed information about its network capabilities, arguing
    that such information is competitively sensitive and highly
    confidential.[^88]

32. *Discussion.* We find that the most efficient method for accepting,
    monitoring and maintaining service provider election and withdrawal
    information is to accept electronic submissions to the Commission.
    Accordingly, we require CMS providers to file electronically in PS
    Docket No. 08-146 a letter describing their election. Carriers
    electing, in part or in whole, to transmit emergency alerts shall
    attest that they agree to transmit such alerts in a manner
    consistent with the technical standards, protocols, procedures, and
    other technical requirements implemented by the Commission. Further,
    we accept the recommendation of the CMSAAC that a CMS provider
    electing to transmit, in part or in whole, emergency alerts,
    indicates its commitment to support the development and deployment
    of technology for the following: the "C" interface, the CMS provider
    Gateway, the CMS provider infrastructure, and mobile devices with
    CMAS functionality and support of the CMS provider selected
    technology. We require CMS providers to submit their letter of
    election within 30 days after the release of this Order.[^89] Due to
    the ongoing development of the Alert Aggregator/Gateway system and
    the Government Interface Design specifications, we do not require
    CMS providers electing to transmit, in part or in whole, emergency
    alerts to specify when they will be able to offer mobile alerting.
    With respect to commenters seeking the submission of detailed
    information about the links used to provide that connection and a
    description of their technical capability for providing state,
    regional and local alerts, we find that the statutory language does
    not require provision of this information. Further, we find that it
    would be unduly burdensome for carriers to provide such information
    and, therefore, reject those suggestions. We agree with Verizon
    Wireless that requiring such information could force providers to
    divulge competitively sensitive information.[^90] Additionally,
    requiring such information imposes substantial administrative and
    technical burdens on providers that are inconsistent with the
    voluntary nature of the CMAS program.

33. Section 602(b)(2)(D)(i) requires the Commission to establish a
    procedure for a commercial mobile service licensee that has elected
    to transmit emergency alerts to withdraw its election without
    regulatory penalty or forfeiture upon advance written notification
    of the withdrawal to its affected subscribers. Thus, we require a
    CMS provider that withdraws its election to transmit emergency
    alerts to notify all affected subscribers 60 days prior to the
    withdrawal of the election. Carriers that withdraw their election to
    transmit alerts shall be subject to the notification requirements
    described in Paragraph 37. We also require carriers to notify the
    Commission of their withdrawal, including information on the scope
    of their withdrawal, at least 60 days prior to electing to do so.
    Such a requirement is consistent with the requirement under Section
    602(b)(2)(D)(i) that we establish procedures for election
    withdrawal, and with the WARN Act's provision requiring providers to
    inform the Commission of their election to participate in the CMAS.

34. With respect to section 602(b)(2)(D)(ii), requiring that the
    Commission "establish a procedure for a commercial mobile service
    licensee to elect to transmit emergency alerts at a date later than
    provided in subparagraph (A)," we require such CMS licensees, 30
    days prior to offering this service, to file electronically their
    election to transmit, in part or in whole, or to not transmit
    emergency alerts in the manner and with the attestations described
    above. This mirrors the Commission's rules for providers who elect
    immediately and provides a sufficient and fair amount of time for
    providers to elect to participate at a later date.

## Other Issues

### Subscriber Termination of Service

35. *Background.* Section 602(b)(2)(D)(iii) requires the Commission to
    establish a procedure "under which a subscriber may terminate a
    subscription to service provided by a commercial mobile service
    licensee that withdraws its election without penalty or early
    termination fee."[^91] We sought comment on the procedures necessary
    to implement this provision. Specifically, we asked whether
    notification in the terms and conditions of service is sufficient to
    apprise subscribers of their right to discontinue service without
    penalty or termination fee, whether the Commission should prescribe
    specific procedures for subscribers and whether service providers
    should submit to the Commission a description of their procedure for
    informing subscribers of their right to terminate service.[^92]

36. *Comments.* CTIA argues that the Commission should "regulate
    sparingly in the area of customer termination of subscriber
    agreements in the event that a wireless provider withdraws its
    election to participate in the CMAS."[^93] Further, it states that
    "heavy-handed regulation and oversight both consumes Commission
    resources and adds cost to the overall provision of service (and, in
    turn, adds to subscriber cost)" and "adopting a procedure that fits
    with a company's other procedures and policies will make the option
    more user-friendly for the customer familiar with the wireless
    provider."[^94] CPUC states that the FCC should prescribe specific
    procedures for informing customers and accomplishing terminations
    rather than having providers design their own procedures.[^95] CPUC
    argues the Commission should design a process that includes notice
    to customers in clear and explicit language citing the statute and
    that the notices should facilitate the ability of a customer to
    automatically respond and immediately discontinue service. CPUC adds
    that customer acknowledgement of this information should be required
    by signature and dating or some corresponding affirmative action as
    done for non-participating providers at the point of initial
    sale.[^96]

37. *Discussion.* We find that because Section 602(b)(2)(D)(iii), on its
    face, clearly provides rights specifically aimed at subscribers --
    that they may terminate service without penalty or early termination
    fee if a provider withdraws its initial election to participate in
    CMAS -- subscribers require individual notice of their rights under
    the WARN Act. We further find that carriers must notify each
    affected subscriber individually in clear and conspicuous language,
    citing the statute, of the subscriber's right to terminate service
    without penalty or early termination fee should a carrier withdraw
    its initial election.[^97] We do not otherwise adopt any specific
    methods or procedures for implementing this individualized notice,
    but rather leave it to CMS providers to determine how best to
    communicate these statutory rights to their customers.

### Subscriber Alert Opt-Out

38. *Background.* Section 602(b)(2)(E) provides that "\[a\]ny commercial
    mobile service licensee electing to transmit emergency alerts may
    offer subscribers the capability of preventing the subscriber's
    device from receiving such alerts, or classes of such alerts, other
    than an alert issued by the President."[^98] The CMSAAC recommended
    that CMS providers should offer their subscribers a simple opt-out
    process.[^99] With the exception of Presidential messages, which are
    always transmitted, the CMSAAC recommended that the process should
    allow the choice to opt out of "all messages," "all severe
    messages," and AMBER Alerts.[^100] The CMSAAC suggested that,
    because of differences in the way CMS providers and device
    manufacturers provision their menus and user interfaces, CMS
    providers and device manufacturers should have flexibility about how
    to present the opt-out choices to subscribers. In the CMAS First
    Report and Order, the Commission further defined these three alert
    classes as: (1) Presidential Alert, (2) Imminent Threat Alert,
    and (3) Child Abduction Emergency/AMBER Alert.[^101] We sought
    comment on the recommendations of the CMSAAC with respect to three
    choices of message types that a subscriber should be allowed to
    choose to opt out of receiving.[^102] Additionally, we sought
    comment on the CMSAAC recommendation that CMS providers and device
    manufacturers should have flexibility or whether the Commission
    should establish baseline criteria for informing subscribers of this
    capability and if any uniform standards for conveying that
    information to subscribers is required.[^103] We also sought comment
    on whether more classes of alerts should be considered.[^104]

39. *Comments*. Many commenters who addressed this issue expressed
    support for the CMSAAC's recommendations.[^105] For example,
    T-Mobile argues that, given the different types of handsets and the
    wide array of menu interfaces offered by CMS providers, the
    Commission should not impose baseline standards or a uniform
    methodology for disabling alerts on this array of mobile handsets or
    devices.[^106] AAPC states that carriers should be permitted to
    manage subscriber opt-outs of alerts at the network terminal level
    and not just at the subscriber device level.[^107] Wireless RERC
    argues that CMS providers should make it clear to the subscriber
    what opting-out means -- that, for example, they will not receive
    tornado warnings.[^108] CPUC agrees, stating that CMS providers
    should be required to inform subscribers that they have the choice
    of opting out of alerts.[^109]

40. One party -- PTT \-- objected to the provision of any subscriber
    opt-out mechanism. PTT states that an opt-out capability will defeat
    the purpose of the program if a large number of potential users opt
    out due to concerns about battery usage. It states that if such a
    "requirement" moves forward, it would prefer that subscribers use
    the SMS filtering features of their own device to filter undesired
    messages, rather than making this a universal feature of the
    program.[^110]

41. *Discussion*. We agree with the CMSAAC proposed simple opt-out
    program. The process should allow the choice to opt out of "Imminent
    Threat Alert messages" and "Child Abduction Emergency/AMBER Alert
    messages." This allows consumers the flexibility to choose what type
    of message they wish to receive while still ensuring that customers
    are apprised of the most severe threats as communicated by
    Presidential Alert messages, which are always transmitted. However,
    because of the differences in how CMS providers and device
    manufacturers provision menus and user interfaces, we afford CMS
    providers flexibility to provide opt-out choices consistent with
    their own system. While we assume, as proposed by the Wireless RERC,
    that providers would make clear to consumers what each option means,
    and provide examples of what types of messages the customer may not
    receive as a result of opting-out so that consumers can make an
    informed choice, we do not require providers to include such
    information because there is no corresponding requirement in the
    WARN Act.

42. We disagree with PTT's argument that opt-out capability will defeat
    the purpose of the program. First, the WARN Act specifically grants
    providers the option to allow subscribers to opt-out of all but
    Presidential alerts. It would be inconsistent with the clear intent
    of Congress for the Commission to disallow this option. Secondly,
    the Alert Gateway used to transmit CMAS messages will most likely be
    separate and distinct from the SMS gateway. Therefore, subscribers
    may be unable to use their SMS filtering feature to filter CMAS
    messages.

### Cost Recovery

43. *Background.* Section 602(b)(2)(C) states "\[a\] commercial mobile
    service licensee that elects to transmit emergency alerts may not
    impose a separate or additional charge for such transmission or
    capability."[^111] In the *Notice*, we asked whether Section
    602(b)(2)(C)'s reference to "transmission or capability" should be
    read narrowly and sought comment whether this provision precludes a
    participating CMS provider's ability to recover costs associated
    with the provision of alerts.[^112] Noting, for example, that much
    of the alert technology will reside in the subscriber's mobile
    device, we asked whether CMS providers should recover CMAS-related
    developmental costs from the subscriber through mobile device
    charges based on a determination that mobile devices lie outside the
    "transmission or capability" language of the section.[^113] We also
    asked about cost recovery in connection with CMAS-related services
    and technologies that are not used to deliver CMAS.[^114]

44. *Comments.* Many of those commenting on the issue argue that
    participating CMS providers should be allowed to recover
    development, maintenance and manufacturing costs from their
    subscribers.[^115] AT&T urges the Commission to declare that costs
    incurred in the development of CMAS and in the provision of mobile
    emergency alerts are recoverable under the WARN Act and that cost
    recovery is consistent with the plain language of the Act.[^116]
    AT&T argues that the statutory language concerning separate or
    additional charges "only addresses the appearance or presentation of
    charges on a subscriber's bill for the emergency alert mandate,"
    "does not in any way limit a carrier's ability to recover costs
    associated with CMAS implementation," and "to limit cost recovery in
    this way would require the imposition of rate regulation and a
    regulatory accounting regime, which the Commission specifically has
    rejected for the competitive wireless industry."[^117] SouthernLINC
    argues that Section 602(b)(2)(C) should be interpreted to apply only
    to separate charges associated with the specific costs involved in
    transmitting each alert and that subscribers should not be charged a
    per-alert fee. It argues, however, that carriers should be permitted
    to recover costs associated with the implementation and ongoing
    system management and any vendor-imposed handset costs. Such an
    approach, SouthernLINC argues, would encourage greater carrier
    participation.[^118] T-Mobile agrees, stating that it is fair to
    consumers who choose to buy a more sophisticated handset to cover
    some or all of the costs of the handset's development.[^119] On the
    other hand, Wireless RERC argues that CMS providers should be
    treated no differently than EAS participants who must bear the costs
    of their EAS participation. It states further that "since CMAS is
    starting as a voluntary system and CMS providers are not allowed to
    impose a separate or additional charge for such transmission or
    capability, the Commission should review its mobile services
    regulations to implement any incentives that might offset CMS
    expenses and encourage CMS providers to participate in CMAS."[^120]

45. *Discussion.* We agree with those commenters who urge us to find
    that section 602(b)(2)(C) precludes CMS providers from imposing a
    "separate or additional charge" for the transmission of CMAS alerts
    or the capability to transmit such alerts, but that such language
    does not preclude recovery of CMAS-associated costs,[^121] including
    costs related to the development of customer handsets.[^122] Section
    602(b)(2)(C) states that "\[a\] commercial mobile service licensee
    that elects to transmit emergency alerts may not impose *a separate
    or additional charge* for such transmission or capability."[^123] We
    interpret this language to mean that CMS providers shall not
    separately or additionally charge customers for provided alerts. But
    nothing in this statutory language -- and nothing in the statute's
    legislative history -- indicates an intention on the part of
    Congress to preclude recovery of, for example, CMAS-related
    development and implementation costs. In this regard, we note that
    Congress is well aware of this Commission's Title III regulation of
    wireless carriers,[^124] which provides for flexible recovery of
    costs through assessed rates and other means.[^125] We conclude
    that, if Congress had wanted to preclude cost recovery, as opposed
    to merely prohibiting separate or additional charges for alert
    transmission or alert transmission capability, it would have said
    so. We also find that permitting recoverable costs associated with
    the provision of CMAS alerts would be consistent with the voluntary
    nature of the CMAS and our general policy to encourage participation
    in the CMAS. [^126]

46. Although we make clear that section 602(b)(2)(C) does not prevent
    recovery of CMAS-related costs by CMS providers, we do not mandate
    any particular method of cost recovery. CMS providers have the
    discretion to absorb service-related costs or to pass on all or
    portions of such costs to their customers pursuant to
    generally-developed service rates. We also find that, because CMS
    providers operate in a competitive marketplace, market forces will
    guide decisions by CMS providers in recovering costs. Finally, we
    find that the language of section 602(b)(2)(C) is, on its face,
    limited to charges for alert transmissions and the capability to
    provide such transmissions and, accordingly, does not prohibit cost
    recovery, as described here, for specially-designed or augmented
    customer handsets, or in connection with CMAS-related services that
    share use of common technology but are not themselves CMAS alerts,
    for example, for provision of traffic alerts.

### CMAS Deployment Timeline

47. *Background.* In its recommendations, the CMSAAC proposed a timeline
    for implementation of the CMAS. According to the CMSAAC, it will
    take twelve months from the date of submission of the CMSAAC's
    recommendations to complete an industry standardization
    process.[^127] Participating CMS providers would then need an
    additional twenty-four months from the date of completion of the
    standardization process for CMAS development and testing. Initial
    CMS provider testing and deployment would occur 18-24 months from
    the date the industry standardization process is completed.[^128]

48. The specifics of the timeline recommended by the CMSAAC are
    indicated in Figure 1 below.

    ![](media/image1.wmf){width="5.998611111111111in"
    height="2.7354166666666666in"}

    Figure 1[^129]

49. The CMSAAC based its proposed deployment timeline upon the
    assumptions that (1) the CMSAAC recommendations would be accepted
    without any major technical change and (2) the government
    documentation and deliverables would be available at the milestone
    dates indicated on the timeline. As indicated in Figure 1, when
    creating this timeline, the CMSAAC assumed that the Federal Alert
    Aggregator and Gateway would provide the Government Interface Design
    specifications in January 2008.[^130] The CMSAAC also identified
    other factors it stated were outside of the CMS providers' control
    that would influence the deployment and availability of the CMAS,
    such as manufacturer development cycles for equipment in the CMS
    provider infrastructure, manufacturer commitment to support the
    delivery technology of choice by the CMS provider, and mobile device
    manufacturer development of the required CMAS functionality on the
    mobile devices.[^131]

50. As discussed above, on May 30, 2008, the Department of Homeland
    Security\'s Federal Emergency Management Agency (FEMA) announced
    that it will perform the CMAS Alert Aggregator/Gateway role.[^132]
    FEMA noted that the Alert Aggregator/Gateway system has not yet been
    designed or engineered,[^133] and did not indicate when it would
    make the Government Interface Design specifications available to the
    other CMAS participants. FEMA did note, however, that it would work
    with DHS Science and Technology scientists to finalize the technical
    solutions and with the Federal Communications Commission to make the
    Alert Aggregator system operational.[^134] We also note that the
    Alliance for Telecommunications Industry Solutions (ATIS) and the
    Telecommunications Industry Association (TIA) are currently
    developing standards related to the CMAS, particularly regarding the
    development of standards and protocols for the "C" interface.[^135]

51. *Comments.* As we indicated in our *CMAS First Report and Order*, a
    majority of commenters that addressed the issue supported the
    CMSAAC's proposed deployment timeline.[^136]

52. *Discussion.* In our recent *Order on Reconsideration*, we noted our
    intent that our rules would be implemented in a manner consistent
    with the CMSAAC recommended timeline.[^137] We agree with commenters
    who argued that the Alert Aggregator/Gateway must be a centralized,
    federal entity. As noted above FEMA has only recently indicated that
    it can serve as the Federal government entity that will provide the
    Alert Aggregator and Gateway functions, and has not stated when it
    would be able to provide the Government Interface specifications.
    However, in order to ensure that all Americans have the capability
    to receive timely and accurate alerts, warnings, and critical
    information regarding disasters and other emergencies irrespective
    of what communications technologies they use, we find that if FEMA
    has not issued its Government Interface specifications by December
    31, 2008, the Commission will reconvene an emergency meeting of the
    CMSAAC to address the issuance of Government Interface
    specifications.

53. Because of this ambiguity and the need to ensure timely deployment
    of the CMAS, regardless of the federal entity serving as the
    Aggregator/Gateway, the CMAS timeline rules we adopt today do not
    implement the specific target dates recommended by the CMSAAC.
    Rather, as stated in our recent *Order on Reconsideration*,
    participating CMS providers must begin development and testing of
    the CMAS in a manner consistent with the our new part 10 rules no
    later than ten months from the date that FEMA makes the Government
    Interface Design specifications available.[^138] As we noted in the
    *Order on Reconsideration*, this 10-month period corresponds to the
    interval recommended by the CMSAAC for the completion of industry
    standards necessary for CMAS development and testing. However, we
    further require that, at the end of this 10-month period,
    participating CMS providers shall begin an eighteen month
    implementation and deployment period before the CMAS can be made
    available to the public. We recognize that this is an accelerated
    deployment schedule compared to that recommended by the CMSAAC.
    Specifically, following the CMSAAC recommendations, the timeframe
    would be as long as twenty-four months following the 10-month
    industry standardization process, as compared to the eighteen months
    that we order today. Because of the important public safety
    considerations before us, including the need for the provision of
    timely and vital emergency information to an increasingly mobile
    society and our continuing mandate under the Communications Act to
    promote the safety of life and property through the use of wire and
    radio communications, we find that this accelerated schedule is in
    the public interest. Moreover, providing an eighteen month
    implementation and deployment period still allows more than
    twenty-four months from the date the Government Interface Design
    specifications are available for deployment to occur.

54. We also agree with the CMSAAC recommendations that during this
    development and deployment period, the Alert Gateway and Alert
    Aggregator should collaborate with participating CMS providers to
    test the CMAS. In light of what we expect to be a collaborative
    process, the considerable involvement of the carriers to date in the
    development of the CMAS system and operational parameters, and the
    compelling need to provide this capability to the public in a prompt
    fashion, we believe even this accelerated schedule provides a
    sufficient amount of time to CMS providers for deployment of the
    CMAS.

# PROCEDURAL MATTERS

## Final Regulatory Flexibility Act Analysis

55. As required by section 604 of the Regulatory Flexibility Act (RFA),
    5 U.S.C. § 604, the Commission has prepared a Final Regulatory
    Flexibility Analysis of the possible impact of the rule changes
    contained in this Report and Order on small entities. The Final
    Regulatory Flexibility Act Analysis is set forth in Appendix A,
    *infra*. The Commission's Consumer & Government Affairs Bureau,
    Reference Information Center, will send a copy of this Report and
    Order, including the Final Regulatory Flexibility Act Analysis, to
    the Chief Counsel for Advocacy of the Small Business Administration.

## Final Paperwork Reduction Act of 1995 Analysis

56. The initial election that CMS providers must make pursuant to
    section 602(b)(2)(A) of the WARN Act, discussed above, has been
    granted pre-approval by OMB.[^139] This Report and Order may also
    contain new information collection requirements subject to the
    Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. If the
    Commission determines that the Report and Order contains collection
    subject to the PRA, it will be submitted to the Office of Management
    and Budget (OMB) for review under section 3507 of the PRA at the
    appropriate time and the Commission will publish a separate notice
    inviting comment. At that time, OMB, the general public and other
    Federal agencies will be invited to comment on the new or modified
    information collection requirements contained in this proceeding. In
    addition, we note that, pursuant to the Small Business Paperwork
    Relief Act of 2002, Public Law 107-198, *see* 44 U.C.S. 3506(c)(4),
    we will seek specific comment on how the Commission might "further
    reduce the information collection burden for small business concerns
    with fewer than 25 employees."

## Congressional Review Act Analysis

57. The Commission will send a copy of this Report and Order to Congress
    and the Government Accountability Office pursuant to the
    Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A).

## Alternative Formats

58. Alternative formats (computer diskette, large print, audio cassette,
    and Braille) are available to persons with disabilities by sending
    an e-mail to <FCC504@fcc.gov> or calling the Consumer and
    Governmental Affairs Bureau at (202) 418-0530, TTY (202) 418-0432.

## Filing Requirements

59. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
    C.F.R. §§ 1.415, 1.419, parties shall file their election
    certifications on or before September 8, 2008. Elections shall be
    filed using: (1) the Commission's Electronic Comment Filing System
    (ECFS), which is accessible at the Commission's Web site,
    <http://www.fcc.gov/cgb/ecfs>, or (2) the Federal Government's
    eRulemaking Portal. *See Electronic Filing of Documents in
    Rulemaking Proceedings*, 63 FR 24121 (1998).

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

    -   For ECFS filers, filers must transmit one electronic copy of
        their elections to PS Docket No. 08-146. In completing the
        transmittal screen, filers should include their full name, U.S.
        Postal Service mailing address, and the applicable docket or
        rulemaking number. PS Docket No. 08-146 is a docket specially
        created to receive these election letters.

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

# EFFECTIVE DATE

61. The rules we adopt today requiring CMS providers to provide us with
    notice of their election to participate in the CMAS shall be
    effective upon the release date of this Order. The general rule
    under the Administrative Procedure Act (APA) is that the effective
    date of a rule in a Notice and Comment rulemaking must be at least
    30 days following the publication of the rule in the Federal
    Register. [^140] However, both the APA and the Commission's rules
    allow the Commission to adopt a shorter effective date upon a
    showing of "good cause."[^141] For the reasons stated below, we
    conclude that sufficient good cause exists in this case for us to
    make these rules effective in less than thirty days from their
    publication in the Federal Register.

62. First, as we explain above, the WARN Act requires that within 30
    days after we issue today's order, each CMS provider "shall file an
    election with the Commission with respect to whether or not it
    intends to transmit emergency alerts."[^142] In order for the
    Commission to satisfy this statutory mandate, it must have an
    enforceable order in place within the extremely tight statutory
    timeframe imposed by the WARN Act, *i.e.*, within thirty days of
    releasing today's order. This good cause is in no way diminished by
    any lack of notice to the affected CMS providers. To the contrary,
    the CMS providers have had sufficient notice that the Commission
    would be requiring them to elect whether to participate in the CMAS
    within 30 days of the release of an order implementing section
    602(b) of the WARN Act. In the CMAS NPRM, the Commission put the CMS
    providers on notice of election requirements in section 602)(b)(2)
    of the WARN Act in December 2007. This NPRM was subsequently
    published in the Federal Register on January 3, 2008. Thus all
    affected parties have been on notice of the short period of time
    mandated by the WARN Act between the release of today's order and
    the required election by the CMS providers.

63. There also are no procedural bars to having this rule effective
    immediately upon release. The rules we adopt under section 602(b) of
    the WARN Act constitute a "non-major\" rulemaking. Although the CMAS
    First Report and Order constituted a Major Rulemaking, the
    incremental effects of the actions we take today in this CMAS Third
    Report and Order will not have a likely effect on the economy of
    \$100 million or more.[^143] Further, on February 4, 2008, OMB
    granted our request for pre-approval for the CMS provider election
    rules, thus obviating our need for us to wait for OMB approval of
    our CMAS election rules.[^144]

64. Given the statutory mandate imposed by the WARN Act, the notice that
    has been previously supplied to the affected CMS providers, and
    pre-approval of this election procedure by OMB, we conclude that
    good cause exists to truncate the standard 30 day period for rules
    to become effective. Accordingly, the rules set forth herein shall
    take effect immediately upon the release of this order.

# ORDERING CLAUSES

65. IT IS ORDERED, that pursuant to sections 1, 4(i), and (o), 201,
    303(r), 403 and 706 of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 151, 154(i) and (o), 201, 303(r) 403, and 606, as well
    as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN
    Act, this Report and Order IS hereby ADOPTED. This rules adopted in
    this Report and Order shall become effective immediately upon the
    release of this Order. Election to participate in CMAS must be made
    no later than 30 days after the release of this order, and must be
    filed in a manner consistent with the Report and Order and the rules
    adopted herein.

66. IT IS FURTHER ORDERED that the Commission's Consumer and Government
    Affairs Bureau, Reference Information Center, SHALL SEND a copy of
    this Report and Order, including the Final Regulatory Flexibility
    Analysis, to the Chief Council for Advocacy of the Small Business
    Administration.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

    **APPENDIX A**

    **Final Regulatory Flexibility Analysis**

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1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^145] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated in the Notice of Proposed Rulemaking in PSHSB Docket
    07-287 (*CMAS NPRM*). The Commission sought written public comments
    on the proposals in the *CMAS NPRM*, including comment on the IRFA.
    Comments on the IRFA were to have been explicitly identified as
    being in response to the IRFA and were required to be filed by the
    same deadlines as that established in section IV of the *CMAS NPRM*
    for other comments to the *CMAS NPRM*. The Commission sent a copy of
    the *CMAS NPRM*, including the IRFA, to the Chief Counsel for
    Advocacy of the Small Business Administration (SBA).[^146] In
    addition, the *CMAS NPRM* and IRFA were published in the Federal
    Register.[^147]

## Need for, and Objectives of, the Order

67. Section 602(b) of the WARN Act requires the Commission to "complete
    a proceeding -- (A) to allow any licensee providing commercial
    mobile service ... to transmit emergency alerts to subscribers to,
    or users of, the commercial mobile service provided by such
    license; (B) to require any licensee providing commercial mobile
    service that elects, in whole or in part, ... not to transmit
    emergency alerts to provide clear and conspicuous notice at the
    point of sale of any devises with which its commercial mobile
    service is included, that it will not transmit such alerts via the
    service it provides for the device; and (C) to require any licensee
    providing commercial mobile service that elects ... not to transmit
    emergency alerts to notify its existing subscribers of its
    election."[^148] Although the *CMAS NPRM* solicited comment on
    issues related to section 602(a) (CMS alert regulations) and 602(c)
    (Public Television Station equipment requirements), this CMAS Third
    Report and Order only addresses issues raised by section 602(b) of
    the WARN Act.[^149] Accordingly, this FRFA only addressees the
    manner in which any commenters to the IRFA addressed the
    Commission's adoption of standards and requirements for the CMAS as
    required by section 602(b) of the WARN Act.

68. This CMAS Third Report and Order adopts rules necessary to allow any
    CMS provider to transmit emergency alerts to its subscribers; to
    require that CMS providers that elect, in whole or in part, not to
    transmit emergency alerts provide clear and conspicuous notice at
    the point of sale of any CMS devices that it will not transmit such
    alerts via that device; and to require CMS providers that elect not
    to transmit emergency alerts to notify their existing subscribers of
    their election.

## Summary of Significant Issues Raised by Public Comments in Response to the IRFA

69. There were no comments filed that specifically addressed the IRFA.
    The only commenter that explicitly identified itself as a small
    business was Interstate Wireless, Inc., which supported the
    Commission's adoption of the Commercial Mobile Service Alert
    Advisory Committee's (CMSAAC) recommendations.[^150] Interstate
    Wireless did not comment specifically on the IRFA, nor did it
    comment on any issues directly relating to section 602(b) of the
    WARN Act.

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

70. The RFA directs agencies to provide a description of, and, where
    feasible, an estimate of, the number of small entities that may be
    affected by the rules adopted herein.[^151] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^152] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^153] 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).[^154]

71. [Wireless Telecommunications Carriers (except
    Satellite).]{.underline} Since 2007, the SBA has recognized wireless
    firms within this new, broad, economic census category.[^155] Prior
    to that time, the SBA had developed a small business size standard
    for wireless firms within the now-superseded census categories of
    "Paging" and "Cellular and Other Wireless Telecommunications."[^156]
    Under the present and prior categories, the SBA has deemed a
    wireless business to be small if it has 1,500 or fewer employees.
    Because Census Bureau data are not yet available for the new
    category, we will estimate small business prevalence using the prior
    categories and associated data. For the first category of Paging,
    data for 2002 show that there were 807 firms that operated for the
    entire year.[^157] Of this total, 804 firms had employment of 999 or
    fewer employees, and three firms had employment of 1,000 employees
    or more.[^158] For the second category of Cellular and Other
    Wireless Telecommunications, data for 2002 show that there were
    1,397 firms that operated for the entire year.[^159] Of this total,
    1,378 firms had employment of 999 or fewer employees, and 19 firms
    had employment of 1,000 employees or more.[^160] Thus, using the
    prior categories and the available data, we estimate that the
    majority of wireless firms can be considered small.

72. [Cellular Service*.*]{.underline} As noted, the SBA has developed a
    small business size standard for small businesses in the category
    "Wireless Telecommunications Carriers (except satellite)."[^161]
    Under that SBA category, a business is small if it has 1,500 or
    fewer employees.[^162] Since 2007, the SBA has recognized wireless
    firms within this new, broad, economic census category.[^163] Prior
    to that time, the SBA had developed a small business size standard
    for wireless firms within the now-superseded census categories of
    "Paging" and "Cellular and Other Wireless Telecommunications."[^164]
    Accordingly, the pertinent data for this category is contained
    within the prior [Wireless Telecommunications Carriers (except
    Satellite]{.underline}) category.

73. [Auctions.]{.underline} Initially, we note that, as a general
    matter, the number of winning bidders that qualify as small
    businesses at the close of an auction does not necessarily represent
    the number of small businesses currently in service. Also, the
    Commission does not generally track subsequent business size unless,
    in the context of assignments or transfers, unjust enrichment issues
    are implicated.

74. [Broadband Personal Communications Service.]{.underline} The
    broadband Personal Communications Service (PCS) spectrum is divided
    into six frequency blocks designated A through F, and the Commission
    has held auctions for each block. The Commission has created a small
    business size standard for Blocks C and F as an entity that has
    average gross revenues of less than \$40 million in the three
    previous calendar years.[^165] For Block F, an additional small
    business size standard for "very small business" was added and is
    defined as an entity that, together with its affiliates, has average
    gross revenues of not more than \$15 million for the preceding three
    calendar years.[^166] These small business size standards, in the
    context of broadband PCS auctions, have been approved by the
    SBA.[^167] No small businesses within the SBA-approved small
    business size standards bid successfully for licenses in Blocks A
    and B. There were 90 winning bidders that qualified as small
    entities in the C Block 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.[^168] On March 23, 1999, the
    Commission reauctioned 155 C, D, E, and F Block licenses; there were
    113 small business winning bidders.[^169] On January 26, 2001, the
    Commission completed the auction of 422 C and F PCS licenses in
    Auction 35.[^170] Of the 35 winning bidders in this auction, 29
    qualified as "small" or "very small" businesses. Subsequent events
    concerning Auction 35, including judicial and agency determinations,
    resulted in a total of 163 C and F Block licenses being available
    for grant.

75. [Narrowband Personal Communications Service.]{.underline} The
    Commission held an auction for Narrowband Personal Communications
    Service (PCS) licenses that commenced on July 25, 1994, and closed
    on July 29, 1994. A second commenced on October 26, 1994 and closed
    on November 8, 1994. For purposes of the first two Narrowband PCS
    auctions, "small businesses" were entities with average gross
    revenues for the prior three calendar years of \$40 million or
    less.[^171] Through these auctions, the Commission awarded a total
    of forty-one licenses, 11 of which were obtained by four small
    businesses.[^172] To ensure meaningful participation by small
    business entities in future auctions, the Commission adopted a
    two-tiered small business size standard in the *Narrowband PCS
    Second Report and Order*.[^173] A "small business" is an entity
    that, together with affiliates and controlling interests, has
    average gross revenues for the three preceding years of not more
    than \$40 million.[^174] A "very small business" is an entity that,
    together with affiliates and controlling interests, has average
    gross revenues for the three preceding years of not more than \$15
    million.[^175] The SBA has approved these small business size
    standards.[^176] A third auction commenced on October 3, 2001 and
    closed on October 16, 2001. Here, five bidders won 317 (MTA and
    nationwide) licenses.[^177] Three of these claimed status as a small
    or very small entity and won 311 licenses.

76. [Wireless Communications Services.]{.underline} This service can be
    used for fixed, mobile, radiolocation, and digital audio
    broadcasting satellite uses in the 2305-2320 MHz and 2345-2360 MHz
    bands. The Commission defined "small business" for the wireless
    communications services (WCS) auction as an entity with average
    gross revenues of \$40 million for each of the three preceding
    years, and a "very small business" as an entity with average gross
    revenues of \$15 million for each of the three preceding
    years.[^178] The SBA has approved these definitions.[^179] The
    Commission auctioned geographic area licenses in the WCS service. In
    the auction, which commenced on April 15, 1997 and closed on April
    25, 1997, there were seven bidders that won 31 licenses that
    qualified as very small business entities, and one bidder that won
    one license that qualified as a small business entity.

77. [700 MHz Guard Bands Licenses.]{.underline} In the *700 MHz Guard
    Bands Order*, the Commission adopted size standards for "small
    businesses" and "very small businesses" for purposes of determining
    their eligibility for special provisions such as bidding credits and
    installment payments.[^180] A small business in this service is an
    entity that, together with its affiliates and controlling
    principals, has average gross revenues not exceeding \$40 million
    for the preceding three years.[^181] Additionally, a "very small
    business" is an entity that, together with its affiliates and
    controlling principals, has average gross revenues that are not more
    than \$15 million for the preceding three years.[^182] SBA approval
    of these definitions is not required.[^183] An auction of 52 Major
    Economic Area (MEA) licenses for each of two spectrum blocks
    commenced on September 6, 2000, and closed on September 21,
    2000.[^184] Of the 104 licenses auctioned, 96 licenses were sold to
    nine bidders. Five of these bidders were small businesses that won a
    total of 26 licenses. A second auction of remaining 700 MHz Guard
    Bands licenses commenced on February 13, 2001, and closed on
    February 21, 2001. All eight of the licenses auctioned were sold to
    three bidders. One of these bidders was a small business that won a
    total of two licenses.[^185] Subsequently, in the *700 MHz Second
    Report and Order*, the Commission reorganized the licenses pursuant
    to an agreement among most of the licensees, resulting in a spectral
    relocation of the first set of paired spectrum block licenses, and
    an elimination of the second set of paired spectrum block licenses
    (many of which were already vacant, reclaimed by the Commission from
    Nextel).[^186] A single licensee that did not participate in the
    agreement was grandfathered in the initial spectral location for its
    two licenses in the second set of paired spectrum blocks.[^187]
    Accordingly, at this time there are 54 licenses in the 700 MHz Guard
    Bands.

78. [700 MHz Band Commercial Licenses.]{.underline} There is 80
    megahertz of non-Guard Band spectrum in the 700 MHz Band that is
    designated for commercial use: 698-757, 758-763, 776-787, and
    788-793 MHz Bands. With one exception, the Commission adopted
    criteria for defining two groups of small businesses for purposes of
    determining their eligibility for bidding credits at auction. These
    two categories are: (1) "small business," which is defined as an
    entity that has attributed average annual gross revenues that do not
    exceed \$15 million during the preceding three years; and (2) "very
    small business," which is defined as an entity with attributed
    average annual gross revenues that do not exceed \$40 million for
    the preceding three years.[^188] In Block C of the Lower 700 MHz
    Band (710-716 MHz and 740-746 MHz), which was licensed on the basis
    of 734 Cellular Market Areas, the Commission adopted a third
    criterion for determining eligibility for bidding credits: an
    "entrepreneur," which is defined as an entity that, together with
    its affiliates and controlling principals, has average gross
    revenues that are not more than \$3 million for the preceding three
    years.[^189] The SBA has approved these small size standards.[^190]

79. An auction of 740 licenses for Blocks C (710-716 MHz and 740-746
    MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on
    August 27, 2002, and closed on September 18, 2002. Of the 740
    licenses available for auction, 484 licenses were sold to 102
    winning bidders. Seventy-two of the winning bidders claimed small
    business, very small business, or entrepreneur status and won a
    total of 329 licenses.[^191] A second auction commenced on May 28,
    2003, and closed on June 13, 2003, and included 256 licenses: five
    EAG licenses and 251 CMA licenses.[^192] Seventeen winning bidders
    claimed small or very small business status and won 60 licenses, and
    nine winning bidders claimed entrepreneur status and won 154
    licenses.[^193]

80. The remaining 62 megahertz of commercial spectrum is currently
    scheduled for auction on January 24, 2008. As explained above,
    bidding credits for all of these licenses will be available to
    "small businesses" and "very small businesses."

81. [Advanced Wireless Services.]{.underline} In the *AWS-1 Report and
    Order*, the Commission adopted rules that affect applicants who wish
    to provide service in the 1710-1755 MHz and 2110-2155 MHz
    bands.[^194] The Commission did not know precisely the type of
    service that a licensee in these bands might seek to provide.
    Nonetheless, the Commission anticipated that the services that will
    be deployed in these bands may have capital requirements comparable
    to those in the broadband Personal Communications Service (PCS), and
    that the licensees in these bands will be presented with issues and
    costs similar to those presented to broadband PCS licensees.
    Further, at the time the broadband PCS service was established, it
    was similarly anticipated that it would facilitate the introduction
    of a new generation of service. Therefore, the *AWS-1 Report and
    Order* adopts the same small business size definition that the
    Commission adopted for the broadband PCS service and that the SBA
    approved.[^195] In particular, the *AWS-1 Report and Order* defines
    a "small business" as an entity with average annual gross revenues
    for the preceding three years not exceeding \$40 million, and a
    "very small business" as an entity with average annual gross
    revenues for the preceding three years not exceeding \$15 million.
    The *AWS-1 Report and Order* also provides small businesses with a
    bidding credit of 15 percent and very small businesses with a
    bidding credit of 25 percent.

82. [Common Carrier Paging.]{.underline} As noted, the SBA has developed
    a small business size standard for wireless firms within the broad
    economic census category of \"Wireless Telecommunications Carriers
    (except Satellite).\"[^196] Under this category, the SBA deems a
    business to be small if it has 1,500 or fewer employees. Since 2007,
    the SBA has recognized wireless firms within this new, broad,
    economic census category.[^197] Prior to that time, the SBA had
    developed a small business size standard for wireless firms within
    the now-superseded census categories of "Paging" and "Cellular and
    Other Wireless Telecommunications."[^198] Under the present and
    prior categories, the SBA has deemed a wireless business to be small
    if it has 1,500 or fewer employees. Because Census Bureau data are
    not yet available for the new category, we will estimate small
    business prevalence using the prior categories and associated data.
    For the first category of Paging, data for 2002 show that there were
    807 firms that operated for the entire year.[^199] Of this total,
    804 firms had employment of 999 or fewer employees, and three firms
    had employment of 1,000 employees or more.[^200] For the second
    category of Cellular and Other Wireless Telecommunications, data for
    2002 show that there were 1,397 firms that operated for the entire
    year.[^201] Of this total, 1,378 firms had employment of 999 or
    fewer employees, and 19 firms had employment of 1,000 employees or
    more.[^202] Thus, using the prior categories and the available data,
    we estimate that the majority of wireless firms can be considered
    small. Thus, under this category, the majority of firms can be
    considered small.

83. In the Paging *Third Report and Order*, we developed a small
    business size standard for "small businesses" and "very small
    businesses" for purposes of determining their eligibility for
    special provisions such as bidding credits and installment
    payments.[^203] A "small business" is an entity that, together with
    its affiliates and controlling principals, has average gross
    revenues not exceeding \$15 million for the preceding three years.
    Additionally, a "very small business" is an entity that, together
    with its affiliates and controlling principals, has average gross
    revenues that are not more than \$3 million for the preceding three
    years.[^204] The SBA has approved these small business size
    standards.[^205] An auction of Metropolitan Economic Area licenses
    commenced on February 24, 2000, and closed on March 2, 2000.[^206]
    Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies
    claiming small business status won. Also, according to Commission
    data, 365 carriers reported that they were engaged in the provision
    of paging and messaging services.[^207] Of those, we estimate that
    360 are small, under the SBA-approved small business size
    standard.[^208]

84. [Wireless Communications Service.]{.underline} This service can be
    used for fixed, mobile, radiolocation, and digital audio
    broadcasting satellite uses. The Commission established small
    business size standards for the wireless communications services
    (WCS) auction.[^209] A "small business" is an entity with average
    gross revenues of \$40 million for each of the three preceding
    years, and a "very small business" is an entity with average gross
    revenues of \$15 million for each of the three preceding years. The
    SBA has approved these small business size standards.[^210] The
    Commission auctioned geographic area licenses in the WCS service. In
    the auction, there were seven winning bidders that qualified as
    "very small business" entities, and one that qualified as a "small
    business" entity.

85. [Wireless Communications Equipment Manufacturers.]{.underline} While
    these entities are merely indirectly affected by our action, we are
    describing them to achieve a fuller record. The Census Bureau
    defines this category as follows: "This industry comprises
    establishments primarily engaged in manufacturing radio and
    television broadcast and wireless communications equipment. Examples
    of products made by these establishments are: transmitting and
    receiving antennas, cable television equipment, GPS equipment,
    pagers, cellular phones, mobile communications equipment, and radio
    and television studio and broadcasting equipment." The SBA has
    developed a small business size standard for Radio and Television
    Broadcasting and Wireless Communications Equipment Manufacturing,
    which is: all such firms having 750 or fewer employees.[^211]
    According to Census Bureau data for 2002, there were a total of
    1,041 establishments in this category that operated for the entire
    year. Of this total, 1,010 had employment of under 500, and an
    additional 13 had employment of 500 to 999. Thus, under this size
    standard, the majority of firms can be considered small.[^212]

86. [Radio and Television Broadcasting and Wireless Communications
    Equipment Manufacturing.]{.underline} The Census Bureau defines this
    category as follows: "This industry comprises establishments
    primarily engaged in manufacturing radio and television broadcast
    and wireless communications equipment. Examples of products made by
    these establishments are: transmitting and receiving antennas, cable
    television equipment, GPS equipment, pagers, cellular phones, mobile
    communications equipment, and radio and television studio and
    broadcasting equipment."[^213] The SBA has developed a small
    business size standard for Radio and Television Broadcasting and
    Wireless Communications Equipment Manufacturing, which is: all such
    firms having 750 or fewer employees.[^214] According to Census
    Bureau data for 2002, there were a total of 1,041 establishments in
    this category that operated for the entire year.[^215] Of this
    total, 1,010 had employment of under 500, and an additional 13 had
    employment of 500 to 999.[^216] Thus, under this size standard, the
    majority of firms can be considered small.

87. [Software Publishers.]{.underline} While these entities are merely
    indirectly affected by our action, we are describing them to achieve
    a fuller record. These companies may design, develop or publish
    software and may provide other support services to software
    purchasers, such as providing documentation or assisting in
    installation. The companies may also design software to meet the
    needs of specific users. The SBA has developed a small business size
    standard of \$23 million or less in average annual receipts for the
    category of Software Publishers. For Software Publishers, Census
    Bureau data for 2002 indicate that there were 6,155 firms in the
    category that operated for the entire year. Of these, 7,633 had
    annual receipts of under \$10 million, and an additional 403 firms
    had receipts of between \$10 million and \$24, 999,999. For
    providers of Custom Computer Programming Services, the Census Bureau
    data indicate that there were 32,269 firms that operated for the
    entire year. Of these, 31,416 had annual receipts of under \$10
    million, and an additional 565 firms had receipts of between \$10
    million and \$24,999,999. Consequently, we estimate that the
    majority of the firms in this category are small entities that may
    be affected by our action.

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A.  **Description of Projected Reporting, Recordkeeping, and Other
    Compliance Requirements**

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88. This Report and Order may contain new information collection
    requirements subject to the Paperwork Reduction Act of 1995 (PRA),
    Public Law 104-13. If the Commission determines that the Report and
    Order contains collection subject to the PRA, it will be submitted
    to the Office of Management and Budget (OMB) for review under
    section 3507(d) of the PRA at an appropriate time. At that time,
    OMB, the general public, and other Federal agencies will be invited
    to comment on the new or modified information collection
    requirements contained in this proceeding. In addition, we note that
    pursuant to the Small Business Paperwork Relief Act of 2002, Public
    Law 107-198, *see* 44 U.S.C. 3506(c)(4), we previously sought
    specific comment on how the Commission might "further reduce the
    information collection burden for small business concerns with fewer
    than 25 employees.

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B.  **Steps Taken to Minimize the Significant Economic Impact on Small
    Entities, and Significant Alternatives Considered**

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89. The RFA requires an agency to describe any significant alternatives
    that it has considered in developing its 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 and reporting requirements under the rule for such 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 such small entities."[^217]

90. As noted in paragraph 2 above, this CMAS Third Report and Order
    deals only with the WARN Act section 602(b) requirement that the
    Commission adopt rules necessary to allow any CMS licensee to
    transmit emergency alerts to its subscribers; to require that CMS
    providers that elect, in whole or in part, not to transmit emergency
    alerts, provide clear and conspicuous notice at the point of sale of
    any CMS devices that it will not transmit such alerts via that
    device; and to require CMS providers that elect not to transmit
    emergency alerts, to notify their existing subscribers of their
    election. The entities affected by this order were largely the
    members of the CMSAAC. In its formation of the CMSAAC, the
    Commission made sure to include representatives of small businesses
    among the advisory committee members. Also, as we indicate by our
    treatment of the comments of Interstate Wireless in paragraph 4
    above, the requirements and standards on which the Commission sought
    comment already contain concerns raised by small businesses. The
    WARN ACT NPRM also sought comment on a number of alternatives to the
    recommendations of the CMSAAC, such as the Digital EAS and FM
    sub-carrier based alerts.[^218] In its consideration of these and
    other alternatives the CMSAAC recommendations, the Commission has
    attempted to impose minimal regulation on small entities to the
    extent consistent with our goal of advancing our public safety
    mission by adopting requirements and standards for a CMAS that CMS
    providers would elect to provide alerts and warnings to their
    customers. The affected CMS providers have overwhelmingly expressed
    their willingness to cooperate in the formation of the CMAS, and we
    anticipate that the standards and requirements that we adopt in this
    order will encourage CMS providers to work with other industry and
    government entities to complete and participate in the CMAS.

    **APPENDIX B**

    **List of Commenters**

**Comments in PS Docket No. 07-287**

**[Commenters]{.underline} [Abbreviation]{.underline}**

3G Americas 3G Americas

Acision B.V. and One2Many B.V. Acision

Alliance for Telecommunications Industry Solutions ATIS

Alltel Communications, LLC Alltel

American Association of Paging Carriers AAPC

America\'s Emergency Network AEN

Association of Public Television Stations APTS

AT&T Inc. AT&T

Audemat-Aztec Inc. Audemat-Aztec

California Public Utilities Commission CAPUC

CellCast Technologies, LLC CellCast

Cellular Emergency Alert Service Association -- US Chapter CEASA-US

CTIA -- The Wireless Association CTIA

DataFM, Inc. DataFM

Digital Alert Systems, LLC DAS

Ericsson Inc. Ericsson

Florida Association of Broadcasters FAB

Global Security Systems, LLC Global

Interstate Wireless Inc. Interstate Wireless

Jacob Westfall Westfall

Kendall Post Post

Max Mayfield Mayfield

MetroPCS Communications, Inc. MetroPCS

Mississippi Association of Broadcasters Mississippi Broadcasters

Mississippi Emergency Management Agency MS-EMA

Mississippi Office of Homeland Security MS-OHS

Motorola, Inc. Motorola

National Association of Broadcasters NAB

National Emergency Numbering Association NENA

Nokia Inc. and Nokia Siemens Networks US LLC Nokia

Pontotoc County Emergency Management Agency Pontotoc EMA

Purple Tree Technologies PTT

Rehabilitation Engineering Research Center

> for Wireless Technologies Wireless RERC

Rural Cellular Association RCA

Sheriff, Jefferson Davis Parish, Louisiana Sheriff

SouthernLINC Wireless SouthernLINC

Sprint Nextel Corporation Sprint Nextel

SquareLoop, Inc. SquareLoop

Telecommunications Industry Association TIA

T-Mobile USA, Inc. T-Mobile

Verizon Wireless Verizon

**[Reply Commenters]{.underline} [Abbreviation]{.underline}**

Airadigm Communications - Einstein Wireless Airadigm

Alltel Communications, LLC Alltel

American Association of Paging Carriers AAPC

Association of Public Television Stations APTS

AT&T Inc. AT&T

CellCast Technologies, LLC CellCast

CTIA -- The Wireless Association CTIA

Cox Radio, Inc. Cox

DataFM, Inc. DataFM

FEMA, Director, Office of Nat'l Security Coordination FEMA

Global Security Systems, LLC Global

Interstate Wireless Inc. Interstate Wireless

King County, Washington King County

Motorola, Inc. Motorola

National Telecommunications Cooperative Association NTCA

NTI Group, Inc. NTI

OnStar Corporation OnStar

Rural Cellular Association RCA

SquareLoop, Inc. SquareLoop

T-Mobile USA, Inc. T-Mobile

Verizon Wireless Verizon

**[Ex Parte Commenters]{.underline} [Abbreviation]{.underline}**

American Association of Paging Carriers AAPC

AT&T Inc. AT&T

CTIA -- The Wireless Association CTIA

DataFM, Inc. DataFM

Global Security Systems, LLC Global

National Telecommunications Cooperative Association NTCA

OnStar Corporation OnStar

Rural Cellular Association RCA

**APPENDIX C**

**Final Rules**

**Subpart A---General Information**

Section 10.10 is amended **to** read as follows:

**§ 10.10 Definitions**

\(x\) *"C" Interface.* The interface between the Alert Gateway and CMS
provider Gateway.

\(x\) *CMS provider Gateway*. The mechanism(s) that supports the "C"
interface and associated protocols between the Alert Gateway and the CMS
provider Gateway, and which performs the various functions associated
with the authentication, management and dissemination of CMAS Alert
Messages received from the Alert Gateway.

\(x\) *CMS provider infrastructure*. The mechanism(s) that distribute
received CMAS Alert Messages throughout the CMS provider's network,
including cell site/paging transceivers and perform functions associated
with authentication of interactions with the Mobile Device.

\(x\) *Mobile Devices*. The subscriber equipment generally offered by
CMS providers that supports the distribution of CMAS Alert Messages.

Section 10.11 is amended to read as follows:

**§ 10.11 CMAS Implementation Timeline**

Notwithstanding anything in this part to the contrary, a participating
CMS provider shall begin an 18 month period of development, testing and
deployment of the CMAS in a manner consistent with the rules in this
part no later than 10 months from the date that the Federal Alert
Aggregator and Alert Gateway makes the Government Interface Design
specifications available.

Add a new Subpart B to read as follows:

**Subpart B---Election to Participate in Commercial Mobile Alert
System**

**§ 10.210 CMAS Participation Election Procedures**

\(a\) A CMS provider that elects to transmit CMAS Alert Messages, in
part or in whole, shall electronically file with the Commission a letter
attesting that the Provider:

\(1\) agrees to transmit such alerts in a manner consistent with the
technical standards, protocols, procedures, and other technical
requirements implemented by the Commission; and

\(2\) commits to support the development and deployment of technology
for the "C" interface, the CMS provider Gateway, the CMS provider
infrastructure, and mobile devices with CMAS functionality and support
of the CMS provider selected technology.

\(b\) A CMS provider that elects not to transmit CMAS Alert Messages
shall file electronically with the Commission a letter attesting to that
fact;

\(c\) CMS providers shall file their election electronically to the
docket;

\(d\) CMS providers shall submit their letter within 30 days after the
release of the Third Report and Order in PS Docket No. 08-146.

**§ 10.220 Withdrawal of Election to Participate in CMAS**

A CMS provider that elects to transmit CMAS Alert Messages, in part or
in whole, may withdraw its election without regulatory penalty or
forfeiture if it notifies all affected subscribers as well as the
Federal Communications Commission at least sixty (60) days prior to the
withdrawal of its election. In the event that a carrier withdraws from
its election to transmit CMAS Alert Messages, the carrier must notify
each affected subscriber individually in clear and conspicuous language
citing the statute. Such notice must promptly inform the customer that
he or she no longer could expect to receive alerts and of his or her
right to terminate service as a result, without penalty or early
termination fee. Such notice must facilitate the ability of a customer
to automatically respond and immediately discontinue service.

**§ 10.230 New CMS Providers Participation in CMAS**

CMS providers who initiate service at a date after the election
procedure provided for in §10.210(d) and who elect to provide CMAS Alert
Messages, in part or in whole, shall file electronically their election
to transmit in the manner and with the attestations described in §
10.210(a).

**§ 10.240 Notification to New Subscribers of Non-Participation in
CMAS**

\(a\) A CMS provider that elects not to transmit CMAS Alert Messages, in
part or in whole, shall provide clear and conspicuous notice, which
takes into account the needs of persons with disabilities, to new
subscribers of its non-election or partial election to provide Alert
messages at the point-of-sale.

\(b\) The point-of-sale includes stores, kiosks, third party reseller
locations, web sites (proprietary or third party), and any other venue
through which the CMS provider's devices and services are marketed or
sold.

\(c\) CMS providers electing to transmit alerts "in part" shall use the
following notification:

Notice Regarding Transmission of Wireless Emergency Alerts (Commercial
Mobile Alert Service)

\[\[CMS provider\]\] has chosen to offer wireless emergency alerts
within portions of its service area, as defined by the terms and
conditions of its service agreement, on wireless emergency alert capable
devices. There is no additional charge for these wireless emergency
alerts.

Wireless emergency alerts may not be available on all devices or in the
entire service area, or if a subscriber is outside of the \[CMS
provider\] service area. For details on the availability of this service
and wireless emergency alert capable devices, please ask a sales
representative, or go to \[\[CMS provider's URL\]\].

Notice required by FCC Rule 47 C.F.R. § 10.240 (Commercial Mobile Alert
Service).

\(d\) CMS providers electing in whole not to transmit alerts shall use
the following notification language:

NOTICE TO NEW AND EXISTING SUBSCRIBERS REGARDING TRANSMISSION OF
WIRELESS EMERGENCY ALERTS (Commercial Mobile Alert Service)

\[\[CMS provider\]\] presently does not transmit wireless emergency
alerts.

Notice required by FCC Rule 47 C.F.R. § 10.240 (Commercial Mobile Alert
Service).

**§ 10.250 Notification to Existing Subscribers of Non-Participation in
CMAS**

(a) A CMS provider that elects not to transmit CMAS Alert Messages, in
    part or in whole, shall provide clear and conspicuous notice, which
    takes into account the needs of persons with disabilities, to
    existing subscribers of its non-election or partial election to
    provide Alert messages by means of an announcement amending the
    existing subscriber's service agreement.

\(b\) For purposes of this section, a CMS provider that elects not to
transmit CMAS Alert Messages, in part or in whole, shall use the
notification language set forth in § 10.240 (c) or (d) respectively,
except that the last line of the notice shall reference FCC Rule 47
C.F.R. § 10.250, rather than FCC Rule 47 C.F.R. § 10.240.

\(c\) In the case of prepaid customers, if a mailing address is
available, the CMS provider shall provide the required notification via
U.S. mail. If no mailing address is available, the CMS provider shall
use any reasonable method at its disposal to alert the customer to a
change in the terms and conditions of service and directing the
subscriber to voice-based notification or to a website providing the
required notification.

**§ 10.260 Timing of Subscriber Notification**

The provider notification requirements set forth in §§ 10.240 and 10.250
will become effective sixty (60) days following an announcement by the
Commission that the Alert Aggregator/Gateway system is operational and
capable of delivering emergency alerts to participating CMS providers.

**§ 10.270 Subscribers' Right to Terminate Subscription**

If a CMS provider that has elected to provide CMAS Alert Messages in
whole or in part thereafter chooses to cease providing such alerts,
either in whole or in part, its subscribers may terminate their
subscription without penalty or early termination fee.

**§ 10.280 Subscribers' Right to Opt-Out of CMAS Notifications**

\(a\) CMS providers may provide their subscribers with the option to opt
out of both, or either, the "Child Abduction Emergency/AMBER Alert" and
"Imminent Threat Alert" classes of Alert Messages.

\(b\) CMS providers shall provide their subscribers with a clear
indication of what each option means, and provide examples of the types
of messages the customer may not receive as a result of opting-out.

[^1]: For purposes of Section 602 of the Warning, Alert and Response
    Network ("WARN") Act, Congress specifically defined "commercial
    mobile service" as that found in section 332(d)(1) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 332(d)(1) (the
    term "commercial mobile service" means any mobile service that is
    provided for profit and makes interconnected service available to
    the public or to such classes of eligible users as to be effectively
    available to a substantial portion of the public, as specified by
    regulation by the Commission). Warning, Alert and Response Network
    ("WARN") Act, Title VI of the Security and Accountability For Every
    Port Act of 2006, Pub. L. No. 109-347, 120 Stat. 1884 (2006).

[^2]: WARN Act, § 602(b).

[^3]: Public Alert and Warning System, Exec. Order No. 13407, 71 Fed.
    Reg. 36975 (June 26, 2006) (*Executive Order 13407*). In *Executive
    Order 13407*, the President stated that it was the "policy of the
    United States to have an effective, reliable, integrated, flexible
    and comprehensive system to alert and warn the American people in
    situations of war, terrorist attack, natural disaster, or other
    hazards to public safety and well-being . . .," and established
    certain obligations in this regard for the Department of Homeland
    Security, the National Oceanic & Atmospheric Administration (NOAA)
    and the FCC.

[^4]: *Executive Order 13407*, § 3(b)(iii).

[^5]: *See* 47 U.S.C. § 151.

[^6]: *See* Review of the Emergency Alert System, EB Docket No. 04-296,
    *First Report and Order and Further Notice of Proposed Rulemaking*,
    20 FCC Rcd 18625 (2005) (EAS First Report and Order and Further
    Notice).

[^7]: *See* *id*. at 18653 ¶ 69.

[^8]: CTIA The Wireless Association, at http://www.ctia.org/ (site last
    visited on June 5, 2008).

[^9]: *See* SAFE Port Act, *supra* note 1.

[^10]: WARN Act, § 603(a), (d).

[^11]: *See* Notice of Appointment of Members to the Commercial Mobile
    Service Alert Advisory Committee, Agenda for December 12, 2006
    Meeting, *Public Notice*, 21 FCC Rcd 14175 (PSHSB 2006).

[^12]: WARN Act, § 603(c).

[^13]: The Commercial Mobile Alert System, PS Docket No. 07-287, *Notice
    of Proposed Rulemaking*, 22 FCC Rcd 21975 (2007) (*CMAS NPRM*).

[^14]: A list of the parties commenting on the *CMAS NPRM* is attached
    at Appendix B.

[^15]: The Commercial Mobile Alert System, PS Docket No. 07-287, *First
    Report and Order*, 23 FCC Rcd 6144 (2008) ("*CMAS First Report and
    Order*").

[^16]: WARN Act, § 602(a).

[^17]: The Commercial Mobile Alert System, PS Docket No. 07-287, *Second
    Report and Order and Further Notice of Proposed Rulemaking*, FCC
    08-164 (rel. July 8, 2008) (*"CMAS Second Report and Order"*).

[^18]: WARN Act, § 602(b)(1).

[^19]: *Id*. at § 602(b)(1)(B).

[^20]: CMSAAC Recommendations, § 3.4.1.

[^21]: *Id*. at § 3.4.2.

[^22]: *CMAS NPRM*, 22 FCC Rcd at 21984 ¶¶ 28-29.

[^23]: *Id.*

[^24]: *Id*. at 21984 ¶ 27.

[^25]: *Id.*

[^26]: *Id.* at 21984 ¶ 28.

[^27]: For example, we asked whether service providers should be
    required to include a placard of a particular size at the point of
    sale, whether notification in the service provider's service
    subscription terms and conditions would provide sufficient notice or
    whether each device sold by the service provider should include a
    notice that emergency alerts are not included as a feature of the
    device or the service provider's service. *CMAS NPRM,* 22 FCC Rcd at
    21984 ¶ 28.

[^28]: *Id.*

[^29]: *See, e.g.,* RCA Comments at 5; AAPC Comments at 9; SouthernLINC
    Comments at 11; AT&T Comments at 11; MetroPCS Comments at 6; Alltel
    Reply Comments at 5.

[^30]: SouthernLINC Comments at 12.

[^31]: CTIA Comments at 11-12.

[^32]: *Id*. at 12.

[^33]: *Id.* at 11.

[^34]: *Id*. at 12-13.

[^35]: *See* MetroPCS Comments at 7.

[^36]: *See* RCA Comments at 5; AT&T Comments at 12.

[^37]: MetroPCS Comments at 7.

[^38]: *See, e.g.,* MetroPCS Comments at 7.

[^39]: AAPC Comments at 9.

[^40]: CPUC Comments at 22.

[^41]: *Id*. at 23.

[^42]: Wireless RERC Comments at 13.

[^43]: *Id.* at 13-14.

[^44]: *See, e.g.,* SouthernLINC Comments at 12; CTIA Comments at 11-12;
    MetroPCS Comments at 7.

[^45]: *See* SouthernLINC Comments at 12; CTIA Comments at 11-12;
    MetroPCS Comments at 7.

[^46]: *See, e.g.,* CPUC Comments at 9

[^47]: WARN Act, § 602(b)(1)(C).

[^48]: *CMAS NPRM*, 22 FCC Rcd at 21984-85 ¶ 30. In this regard, we
    asked commenters to take into account that some service providers
    are offering their subscribers electronic billing and do not send a
    paper bill, and some service providers have opt-out programs
    allowing their subscribers to decline receiving any direct mailings
    from the service provider. *Id*.

[^49]: *Id*.

[^50]: *See*, *e.g.*, RCA Comments at 5-6; AAPC Comments at 9;
    SouthernLINC Comments at 13; AT&T Comments at 12; CTIA Comments at
    12; MetroPCS Comments at 7.

[^51]: RCA Comments at 5-6.

[^52]: SouthernLINC Comments at 13.

[^53]: *Id.*

[^54]: MetroPCS Comments at 8.

[^55]: *Id.*

[^56]: Wireless RERC Comments at 14.

[^57]: *Id.*

[^58]: CPUC Comments at 24.

[^59]: *Id*.

[^60]: *Id*. at 26.

[^61]: CTIA Reply Comments at 10.

[^62]: *Id*. at 10-11.

[^63]: *See, e.g.,* RCA Comments at 5-6; AAPC Comments at 9;
    SouthernLINC Comments at 13; AT&T Comments at 12; CTIA Comments at
    12; MetroPCS Comments at 7.

[^64]: *See* SouthernLINC Comments at 13.

[^65]: WARN Act, § 602(b)(2)(A).

[^66]: Federal Emergency Management Agency, *FEMA to Assume
    Aggregator/Gateway Role for Nationwide Cell Phone Alert System*
    (press release), May 30, 2008.

[^67]: *Id.*

[^68]: WARN Act, § 602(b)(2)(A).

[^69]: *Id*. at § 602(b)(2)(B).

[^70]: *Id*. at § 602(b)(2)(D).

[^71]: *Id*. at § 602(b)(2)(D)(i).

[^72]: *Id*. at § 602(b)(2)(D)(ii).

[^73]: *CMAS NPRM*, 22 FCC Rcd at 21986 ¶ 32.

[^74]: The connection between the Alert Gateway and CMS provider
    Gateway.

[^75]: The mechanism(s) that supports the "C" interface and associated
    protocols between the Alert Gateway and the CMS provider Gateway,
    and which performs the various functions associated with the
    authentication, management and dissemination of CMAS Alert Messages
    received from the Alert Gateway.

    []{.mark}

[^76]: The mechanism(s) that perform functions associated with
    authentication of interactions with the Mobile Device and distribute
    received CMAS Alert Messages throughout the CMS provider's network,
    including cell site/paging transceivers.

[^77]: *CMAS NPRM*, 22 FCC Rcd at 21986 ¶ 32.

[^78]: *Id*. at 21986 ¶ 33.

[^79]: *Id*. at 21986 ¶ 34.

[^80]: *See, e.g.*, RCA Comments 6.

[^81]: MetroPCS Comments at 8.

[^82]: *Id.* at 9.

[^83]: *Id*.

[^84]: *Id.*

[^85]: *See, e.g.,* AAPC Comments at 9.

[^86]: CPUC Comments at 26.

[^87]: *Id*. at 26-27.

[^88]: *See* Verizon Wireless Reply Comments at 21.

[^89]: The Commission received pre-approval from OMB for this
    requirement. *See* Office of Management and Budget Action, Election
    Whether to Participate in the Commercial Mobile Alert System, Feb.
    4, 2008.

[^90]: *See* Verizon Wireless Reply Comments at 21.

[^91]: WARN Act, § 602(b)(2)(D)(iii).

[^92]: *CMAS NPRM*, 22 FCC Rcd at 21986-87 ¶ 35.

[^93]: CTIA Comments at 13.

[^94]: *Id.*

[^95]: *See* CPUC Comments at 28.

[^96]: *See* *id.*

[^97]: *See* *id.*

[^98]: WARN Act, § 602(b)(2)(E).

[^99]: *See* CMSAAC Recommendations, § 5.5.3.

[^100]: *Id*. Under the CMSAAC's recommendation, when the subscriber
    chooses to opt out of "all messages," only "presidential" messages
    will be received. *Id*. When the subscriber chooses to opt out of
    "all severe messages," only "extreme messages, AMBER Alerts and
    presidential messages will still be received." *Id*. "Extreme"
    messages correspond to events of near-catastrophic proportions.
    *See* Federal Communications Commission, Transcript of July 18, 2007
    CMSAAC Meeting, at pp 37-38, available at
    http://www.fcc.gov/pshs/docs/advisory/cmsaac/pdf/meeting-transcript071807.pdf
    (last viewed on June 24, 2008). In developing the recommendation,
    the Committee believed that it was important that subscribers who
    opt out of "severe" alerts should still be able to receive these
    "extreme" alerts. *See id*. at p. 38. Finally, when the subscriber
    chooses to opt out of AMBER alerts, all alerts aside from AMBER
    alerts will still be received. *See* CMSAAC Recommendations, §
    5.5.3.

[^101]: *See* *CMAS First Report and Order,* 23 FCC Rcd at 6155 ¶ 26.

[^102]: *CMAS NPRM,* 22 FCC Rcd at 21987 ¶ 36.

[^103]: *Id*.

[^104]: *Id*.

[^105]: *See, e.g.,* T-Mobile Comments at 10-12; AT&T Comments at 13;
    MetroPCS Comments at 9-10.

[^106]: T-Mobile Comments at 11.

[^107]: AAPC Comments at 10.

[^108]: Wireless RERC Comments at 16.

[^109]: CPUC Comments at 28.

[^110]: PTT Comments at 13.

[^111]: WARN Act, § 602(b)(2)(C).

[^112]: *CMAS NPRM,* 22 FCC Rcd at 21987-88 ¶ 38.

[^113]: *Id*.

[^114]: *Id*.

[^115]: *See e.g.*, AAPC Comments at 10; CellCast Technologies Comments
    at 52-53; SouthernLINC Comments at 9-10; Sprint Nextel Comments at
    7-8; Motorola Comments at 8-9; T-Mobile Comments at 7-9.

[^116]: AT&T Comments at 18.

[^117]: *Id.* at 19.

[^118]: SouthernLINC Comments at 9-10. *See also* Sprint Nextel Comments
    at 7-8.

[^119]: T-Mobile Comments at 8.

[^120]: Wireless RERC Comments at 16-17.

[^121]: AT&T Comments at 18-20; Sprint Nextel Comments at 7-8; CTIA
    Comments at 10-11.

[^122]: SouthernLINC Comments at 9-10. *See also* MetroPCS Comments at
    11 (supporting cost recovery for handset-related costs and for costs
    associated with CMAS-related services, such as traffic alerts, if
    CMS provider elects to provide such services). *Cf.* T-Mobile
    Comments at 7-8 (supporting cost recovery in connection with handset
    development but apparently opposing CMAS cost recovery generally).
    *But see* CellCast Comments at 26-27 (supporting recovery of initial
    implementation and infrastructure support costs, but opposing cost
    recovery for development of new CMAS-compatible handsets).

[^123]: WARN Act, § 602(b)(2)(C) (emphasis added).

[^124]: 47 U.S.C. §§ 301 *et seq*.

[^125]: *See* Communications Assistance for Law Enforcement Act and
    Broadband Access and Services, *Second Report and Order and
    Memorandum Opinion and Order*, 21 FCC Rcd 5360, 5392 (2006) (stating
    that wireless carriers my recover costs related to CALEA-imposed
    regulatory mandates by absorbing such costs or, where appropriate,
    by charging customers).

[^126]: *See* Sprint Nextel Comments at 7-8.

[^127]: CMSAAC Recommendations, § 12.2 and Figure 12-1.

[^128]: *Id.*

[^129]: CMSAAC Recommendations, § 12.2.1, Figure 12.1.

[^130]: The CMSAAC also assumed that the *CMAS First Report and Order*
    would be issued by the Commission in April 2008, six months from the
    date of the submission of the CMSAAC's recommendations. The *CMAS
    First Report and Order* was adopted and released on April 9, 2008.
    Finally, the CMSAAC assumed that the government alerting network and
    Alert Gateway would be ready for testing approximately 24 - 27
    months from the date the CMSAAC submitted its recommendations to the
    Commission (*i.e.*, October 2009 -- January 2010).

[^131]: CMSAAC Recommendations, § 12.2. The CMSAAC explained that CMS
    providers will have equipment from multiple manufacturers deployed
    in the CMS provider infrastructure. Multi-vendor environments
    require feature availability and deployment alignment, and require
    interoperability testing between the different manufacturers
    equipment. In addition, the CMSAAC stated that if a CMS provider
    chooses a particular technology to transmit alerts and the vendor
    with which the CMS provider has a relationship chooses not to
    develop the same capability, the CMS provider may be forced into not
    electing to transmit alerts (at least not "in whole").

[^132]: *See* discussion *supra* ¶ 24.

[^133]: *Id.*

[^134]: *Id.*

[^135]: ATIS TIA Comments at 4 .

[^136]: *See CMAS First Report and Order,* 23 FCC Rcd at 6177 ¶ 93. *See
    also* T-Mobile Comments at 2; 3G America Comments at 11; CTIA
    Comments at 19; TIA Comments at 10; AT&T Comments at 20; Ericsson
    Comments at 6; RCA Comments at 1-2.

    ^?^ *See, e.g.*, Verizon Wireless Comments at 6; Verizon Wireless
    Reply Comments at 2-3; RCA Comments at 2-4; Alltel Comments at 2.

[^137]: The Commercial Mobile Alert System, PS Docket No. 07-287, *First
    Order on Reconsideration and Erratum*, FCC 08-166 (rel. July 15,
    2008) (*Order on Reconsideration)* at ¶ 4.

[^138]: *Order on Reconsideration* at ¶ 6.

[^139]: The Commission received pre-approval from OMB for this
    requirement. *See* Office of Management and Budget Action, Election,
    Whether to Participate in the Commercial Mobile Alert System, Feb.
    4, 2008.

[^140]: *See* 5 U.S.C. § 553(d).

[^141]: *See* 5 U.S.C. § 553(d)(3), 47 C.F.R. § 1.427(b).

[^142]: *See* WARN Act, § 602(b)(2)(A).

[^143]: In the case of a "Major" rulemaking, the effective date of a
    substantive rule must be at least 60 days after publication in the
    Federal Register, or 60 days after Congress\'s receipt of a
    Congressional Review Act report, whichever is later.

[^144]: Those rules that contain information collections under the
    Paperwork Reduction Act may not become effective until OMB approval.

[^145]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^146]: *See* 5 U.S.C. § 603(a).

[^147]: 73 FR 546-01 (January 3, 2008).

[^148]: WARN Act § 602(b).

[^149]: As the First Report and Order in this docket indicated, the
    Commission will address the various provisions of the WARN Act and
    related issues in Orders within the deadlines established by the
    statute. *See* The Commercial Mobile Alert System, PS Docket No.
    07-287, *First Report and Order*, 23 FCC Rcd 6144 ¶ 6 n. 16 (2008)
    ("*CMAS First Report and Order*"). Accordingly, pursuant to section
    602(a) of the WARN Act, on April 9, 2008 (within 180 days of receipt
    of the Commercial Mobile Service Alert Advisory Committee's (CMSAAC)
    recommendations) we released the *CMAS First Report and Order*,
    adopting technical standards, protocols, processes and other
    technical requirements "necessary to enable commercial mobile
    service alerting capability for commercial mobile service providers
    that voluntarily elect to transmit emergency alerts." A Second
    Report and Order dealing with the provisions of section 602(c) of
    the WARN Act was adopted on July 8, 2008.

[^150]: Interstate Wireless Comments at 1.

[^151]: 5 U.S.C. § 603(b).

[^152]: 5 U.S.C. § 601(6).

[^153]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the 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." 5 U.S.C. § 601(3).

[^154]: 15 U.S.C. § 632.

[^155]: 13 C.F.R. § 121.201, NAICS code 517210.

[^156]: 13 C.F.R. § 121.201, NAICS codes 517211, 517212.

[^157]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517211 (issued Nov. 2005).

[^158]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^159]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517212 (issued Nov. 2005).

[^160]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^161]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517210.

[^162]: *Id.*

[^163]: 13 C.F.R. § 121.201, NAICS code 517210.

[^164]: 13 C.F.R. § 121.201, NAICS codes 517211, 517212.

[^165]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850-7852
    ¶¶ 57-60 (1996); *see also* 47 C.F.R. § 24.720(b).

[^166]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7852 ¶ 60.

[^167]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^168]: FCC News, "Broadband PCS, D, E and F Block Auction Closes," No.
    71744 (rel. January 14, 1997).

[^169]: *See* "C, D, E, and F Block Broadband PCS Auction Closes,"
    Public Notice, 14 FCC Rcd 6688 (WTB 1999).

[^170]: *See* "C and F Block Broadband PCS Auction Closes; Winning
    Bidders Announced," Public Notice, 16 FCC Rcd 2339 (2001).

[^171]: Implementation of section 309(j) of the Communications Act --
    Competitive Bidding Narrowband PCS, Third Memorandum Opinion and
    Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 175, 196
    ¶ 46 (1994).

[^172]: *See* "Announcing the High Bidders in the Auction of ten
    Nationwide Narrowband PCS Licenses, Winning Bids Total
    \$617,006,674," Public Notice, PNWL 94-004 (rel. Aug. 2, 1994);
    "Announcing the High Bidders in the Auction of 30 Regional
    Narrowband PCS Licenses; Winning Bids Total \$490,901,787," Public
    Notice, PNWL 94-27 (rel. Nov. 9, 1994).

[^173]: Amendment of the Commission's Rules to Establish New Personal
    Communications Services, Narrowband PCS, Second Report and Order and
    Second Further Notice of Proposed Rule Making, 15 FCC Rcd 10456,
    10476 ¶ 40 (2000).

[^174]: *Id.*

[^175]: *Id.*

[^176]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^177]: *See* "Narrowband PCS Auction Closes," Public Notice, 16 FCC Rcd
    18663 (WTB 2001).

[^178]: Amendment of the Commission's Rules to Establish Part 27, the
    Wireless Communications Service (WCS), Report and Order, 12 FCC Rcd
    10785, 10879 ¶ 194 (1997).

[^179]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^180]: *See* Service Rules for the 746-764 MHz Bands, and Revisions to
    Part 27 of the Commission's Rules, Second Report and Order, 15 FCC
    Rcd 5299 (2000).

[^181]: *Id.* at 5343 ¶ 108.

[^182]: *Id.*

[^183]: *Id.* At 5343 ¶ 108 n.246 (for the 746-764 MHz and 776-704 MHz
    bands, the Commission is exempt from 15 U.S.C. § 632, which requires
    Federal agencies to obtain Small Business Administration approval
    before adopting small business size standards).

[^184]: *See* "700 MHz Guard Bands Auction Closes: Winning Bidders
    Announced," Public Notice, 15 FCC Rcd 18026 (2000).

[^185]: *See* "700 MHz Guard Bands Auctions Closes: Winning Bidders
    Announced," Public Notice, 16 FCC Rcd 4590 (WTB 2001).

[^186]: *See* In the Matter of Service Rules for the 698-746, 747-762
    and 777-792 MHz Bands, WT Docket 06-150, Second Report and Order, 22
    FCC Rcd 15289, 15339-15344 ¶¶ 118-134 (2007) (700 MHz Second Report
    and Order).

[^187]: *Id.*

[^188]: *See* Auction of 700 MHz Band Licenses Scheduled for January 24,
    2008, AU Docket No. 07-157, Notice and Filing Requirements, Minimum
    Opening Bids, Reserve Prices, Upfront Payments, and Other Procedures
    for Auctions 73 and 76, DA 07-4171 at ¶ 70 (WTB rel. Oct. 5, 2007);
    Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-59), Report and Order, 17 FCC Rcd 1022,
    1087-88 (2002).

[^189]: *Id.* at 1088.

[^190]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    August 10, 1999.

[^191]: *See* "Lower 700 MHz Band Auction Closes," Public Notice, 17 FCC
    Rcd 17272 (WTB 2002).

[^192]: *See* "Lower 700 MHz Band Auction Closes," Public Notice, 18 FCC
    Rcd 11873 (WTB 2003).

[^193]: *Id.*

[^194]: Service Rules for Advanced Wireless Services in the 1.7 GHz and
    2.1 GHz Bands, WT Docket No. 02-353, Report and Order, 18 FCC Rcd
    25162 (2003) (AWS-1 Report and Order).

[^195]: *See* Implementation of section 309(j) of the Communications Act
    \-- Competitive Bidding, Third Memorandum Opinion and Order and
    Further Notice of Proposed Rulemaking, 10 FCC Rcd 175, 196 (1995);
    Implementation of section 309(j) of the Communications Act \--
    Competitive Bidding, Fifth Report and Order, 9 FCC Rcd 5581-5584
    (1995); 47 C.F.R. §§ 24.320(b) and 24.720(b).

[^196]: 13 C.F.R. § 121.201, NAICS code 517211.

[^197]: 13 C.F.R. § 121.201, NAICS code 517210.

[^198]: 13 C.F.R. § 121.201, NAICS codes 517211, 517210.

[^199]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517211 (issued Nov. 2005).

[^200]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^201]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517212 (issued Nov. 2005).

[^202]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^203]: Amendment of Part 90 of the Commission's Rules to Provide for
    the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, Third Report and Order and Fifth
    Notice of Proposed Rulemaking, 12 FCC Rcd 10943, 11068-70, ¶¶s.
    291-295, 62 FR 16004 (Apr. 3, 1997).

[^204]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, FCC, from A.
    Alvarez, Administrator, SBA (Dec. 2, 1998).

[^205]: Revision of Part 22 and Part 90 of the Commission's Rules to
    Facilitate Future Development of Paging Systems, Memorandum Opinion
    and Order on Reconsideration and Third Report and Order, 14 FCC Rcd
    10030, ¶¶s. 98-107 (1999).

[^206]: *Id.* at 10085, ¶. 98.

[^207]: FCC Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3.,
    page 5-5 (Feb. 2007). This source uses data that are current as of
    October 20, 2005.

[^208]: *Id.*

[^209]: Public Notice, "Auction of Wireless Communications Services,
    Auction Notes and Filing Requirements for 128 WCS Licenses Scheduled
    for April 15, 1997," DA 97-386, Feb. 21, 1997.

[^210]: SBA Dec. 2, 1998 Letter.

[^211]: NAICS code 334220.

[^212]: NAICS code 11210.

[^213]: U.S. Census Bureau, 2002 NAICS Definitions, "334220 Radio and
    Television Broadcasting and Wireless Communications Equipment
    Manufacturing";
    http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342.

[^214]: 13 C.F.R. § 121.201, NAICS code 334220.

[^215]: U.S. Census Bureau, American FactFinder, 2002 Economic Census,
    Industry Series, Industry Statistics by Employment Size, NAICS code
    334220 (released May 26, 2005); http://factfinder.census.gov. The
    number of "establishments" is a less helpful indicator of small
    business prevalence in this context than would be the number of
    "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical location
    for an entity is an establishment, even though that location may be
    owned by a different establishment. Thus, the numbers given may
    reflect inflated numbers of businesses in this category, including
    the numbers of small businesses. In this category, the Census
    breaks-out data for firms or companies only to give the total number
    of such entities for 2002, which was 929.

[^216]: *Id.* An additional 18 establishments had employment of 1,000 or
    more.

[^217]: 5 U.S.C. § 603(c)(1) -- (c)(4).

[^218]: *See CMAS NPRM*, 22 FCC Rcd 21975, at ¶ 39.