Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, 50085-50095 [E7-17123]

Download as PDF Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules Section of this Federal Register. Dated: August 20, 2007. Robert W. Varney, Regional Administrator, EPA New England. [FR Doc. E7–17002 Filed 8–29–07; 8:45 am] BILLING CODE 6560–50–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 20 [WT Docket No. 05–265, FCC No. 07–143] Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers Federal Communications Commission. ACTION: Proposed rule. rfrederick on PROD1PC67 with PROPOSALS AGENCY: SUMMARY: In this Further Notice of Proposed Rulemaking (FNPRM), the Federal Communications Commission (FCC) seeks comment on whether it should extend the automatic roaming obligation of commercial mobile radio service (CMRS) carriers to noninterconnected services or features, including services that have been classified as information services, such as wireless broadband Internet access service, or other non-CMRS services. The FCC further seeks comment on the implications of extending the automatic roaming obligation in this manner. DATES: Comments due on or before October 29, 2007 and reply comments are due on or before November 28, 2007. ADDRESSES: You may submit comments, identified by WT Docket No. 05–265, by any of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. • Federal Communications Commission’s Web Site: https:// www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments. • E-mail: Include the docket number in the subject line of the message. • People With Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov VerDate Aug<31>2005 13:11 Aug 29, 2007 Jkt 211001 or phone: 202–418–0530 or TTY: 202– 418–0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Christina Clearwater at (202) 418–1893, Christina.Clearwater@fcc.gov, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau; Won Kim at (202) 418–1368, Won.Kim@fcc.gov, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s Further Notice of Proposed Rulemaking (FNPRM), WT Docket No. 05–265, FCC No. 07–143, adopted August 7, 2007 and released August 16, 2007. The full text of the FNPRM is available for public inspection on the Commission’s Internet site at https://www.fcc.gov. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY–A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission’s duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY–B402, Washington, DC 20554; telephone (202) 488–5300; fax (202) 488–5563; e-mail FCC@BCPIWEB.COM. Initial Paperwork Reduction Act of 1995 Analysis This document does not contain an information collection subject to the Paperwork Reduction Act of 1995, and therefore does not contain any new or modified ‘‘information collection burden for small business concerns with fewer than 25 employees,’’ pursuant to the Small Business Paperwork Relief Act of 2002. Synopsis 1. In the FNPRM, the FCC seeks comment on whether it should extend the automatic roaming obligation of CRMS carriers to non-interconnected services or features, including services that have been classified as information services, such as wireless broadband Internet access service, or other noninterconnected non-CMRS services offered by CMRS carriers, and on the legal and policy basis for doing so. The FCC further seeks comment on the implications of extending the automatic roaming obligation in this manner. 2. To what extent, if any, would requiring roaming access to noninterconnected services and features PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 50085 undermine carriers’ incentive to innovate or invest in mobile wireless broadband network facilities? Would the potential for undermining innovation be mitigated by conditioning roaming access to non-interconnected services and features, as the Commission has, for example, with push-to-talk and SMS? Namely, should the Commission require that the requesting carrier must offer the requested service or feature to its subscribers on its own home network; that roaming must be technically feasible; and any changes to the wouldbe host carrier’s network that are necessary to accommodate roaming requests extending to these services and features must be economically reasonable? 3. If the Commission were to extend automatic roaming obligations to noninterconnected services and features, are there any special issues (technical, economic, or otherwise) associated with roaming data networks that may not exist when roaming among CMRS carriers’ interconnected voice networks? For example, are there any issues regarding network capacity, network integrity, or network security? The Commission seeks comment on the effect that automatic roaming would have on the capacity of data networks and the ability of carriers to offer full access to their own customers. The Commission would be concerned if requiring a carrier to offer roaming service on its data network to the customers of other carriers resulted in the carrier facing capacity constraints that adversely affect its own customers. The Commission therefore asks whether a carrier should have the right to limit access to its network by roamers, and what parameters should be considered as justification for such limits. The Commission invites commenters to suggest specific standards for determining when the requirement should or should not apply. 4. If the Commission were to extend automatic roaming obligations to noninterconnected services and features, should all such services and features be included? Are there any public interest reasons to treat narrowband and broadband data services differently in the context of automatic roaming? In the Wireless Broadband Classification Order,1 the Commission determined that mobile wireless broadband Internet access service is an information service, and that it is not CMRS. If the 1 See generally, Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, Declaratory Ruling, 22 FCC Rcd 5901 (2007). E:\FR\FM\30AUP1.SGM 30AUP1 50086 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules Commission were to impose an automatic roaming obligation on mobile wireless broadband Internet access services, how could it do so in accordance with the determinations in that order? For example, could the Commission base the requirement on Title I ancillary jurisdiction, or on the Title III regulation of radio services? Or should the Commission restrict the automatic roaming mandate only to non-interconnected data services that are not classified as information services? The Commission notes that while a few CMRS providers have requested that the Commission require automatic roaming for all services, including non-interconnected data services provided over enhanced digital networks, other CMRS providers, including several small carriers, are against imposing automatic roaming rules for enhanced data services, arguing that forced roaming would thwart market forces by benefiting only those providers that have opted to invest less on their systems. Given these contradictory positions, what is the appropriate balance to be drawn between providing seamless service accessibility to end-users, and allowing service providers to gain competitive advantages from their investments and innovations? rfrederick on PROD1PC67 with PROPOSALS Ex Parte Presentations 5. The rulemaking shall be treated as a ‘‘permit-but-disclose’’ proceeding in accordance with the Commission’s ex parte rules.2 Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented generally is required.3 Other requirements pertaining to oral and written presentations are set forth in Section 1.1206(b) of the Commission’s rules.4 Comment Filing Procedures 6. Pursuant to §§ 1.415 and 1.419 of the Commission’s rules,5 interested parties may file comments on or before 60days after publication of the FNPRM in the Federal Register and reply comments regarding the FNPRM may be filed on or before 90 days after publication of the FNPRM in the Federal Register. All filings related to this FNPRM should refer to WT Docket 2 47 CFR 1.200 et seq. 47 CFR 1.1206(b)(2). 4 47 CFR 1.1206(b). 5 47 CFR 1.415, 1.419. No. 05–265. Comments may be filed using: (1) The Commission’s Electronic Comment Filing System (ECFS), (2) the Federal Government’s eRulemaking Portal, or (3) by filing paper copies.6 • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: https://www.fcc.gov/ cgb/ecfs/ or the Federal eRulemaking Portal: https://www.regulations.gov. Filers should follow the instructions provided on the website for submitting comments. • ECFS filers must transmit one electronic copy of the comments for WT Docket No. 05–265. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and WT Docket No. 05–265. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov and include the following words in the body of the message, ‘‘get form.’’ A sample form and directions will be sent in response. • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission’s Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. • The Commission’s contractor will receive hand-delivered or messengerdelivered paper filings for the Commission’s Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554. 7. Parties should send a copy of their filings to: Christina Clearwater, Wireless Telecommunications Bureau, 445 12th Street, SW., Washington, DC 20554, or by e-mail to 3 See VerDate Aug<31>2005 13:11 Aug 29, 2007 6 See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Jkt 211001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 christina.clearwater@fcc.gov and Won Kim, Wireless Telecommunications Bureau, 445 12th Street, SW., Washington, DC 20554, or by e-mail to won.kim@fcc.gov. Parties shall also serve one copy with the Commission’s copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, Room CY–B402, 445 12th Street, SW., Washington, DC 20554, (202) 488–5300, or via e-mail to fcc@bcpiweb.com. 8. Documents in WT Docket No. 05– 265 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, Room CY–A257, 445 12th Street, SW., Washington, DC 20554. The documents may also be purchased from BCPI, telephone (202) 488–5300, facsimile (202) 488–5563, TTY (202) 488–5562, e-mail fcc@bcpiweb.com. 9. 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). Contact the FCC to request reasonable accommodations for filing comments (accessible format documents, sign language interpreters, CARTS, etc.) by email: FCC504@fcc.gov; phone: 202–418– 0530 (voice), 202–418–0432 (TTY). Initial Regulatory Flexibility Analysis 10. As required by the Regulatory Flexibility Act of 1980, as amended (the ‘‘RFA’’),7 the Commission has prepared this Initial Regulatory Flexibility Analysis (‘‘IRFA’’) of the possible significant economic impact of the policies and rules proposed in the Further Notice of Proposed Rulemaking (‘‘FNPRM’’) on a substantial number of small entities. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM provided in the item. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (‘‘SBA’’).8 In addition, the FNPRM and IRFA (or summaries thereof) will be published in the Federal Register.9 A. Need for, and Objectives of, the Proposed Rules 11. Building on the decisions made in the Report and Order, the FNPRM 7 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. 104–121, Title II, 110 Stat. 857 (1996). 8 See 5 U.S.C. 603(a). 9 See 5 U.S.C. 603(a). E:\FR\FM\30AUP1.SGM 30AUP1 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules rfrederick on PROD1PC67 with PROPOSALS encompasses issues concerning the applicability of the automatic roaming obligation for all wireless providers. In the Report and Order, the Commission clarifies that the automatic roaming is a common carrier obligation and adopts an automatic roaming rule that is applicable to services offered by CMRS carriers that are real-time, two-way switched voice or data services that are interconnected with the public switched network, and to push-to-talk and text messaging service. Recognizing wireless subscribers’ increasing reliance on mobile telephony services, especially the growing demand of data services by consumers, the FNPRM seeks comment on whether the Commission should extend the applicability of the automatic roaming requirements to noninterconnected services or features, including services that have been classified as information services, such as wireless broadband Internet access service, or other non-CMRS services. The FNPRM further seeks comment on the implications of extending the automatic roaming obligation in this manner. The Commission’s primary objective in this proceeding is to facilitate seamless wireless communications for consumers, even when they are outside of the coverage area of their own service providers. 12. In the FNPRM, the Commission notes that while a few CMRS providers have requested that the Commission require automatic roaming for all services, including non-interconnected data services provided over enhanced digital networks,10 other CMRS providers, including several small carriers, are against imposing automatic roaming rules for enhanced data services, arguing that forced roaming would thwart market forces by benefiting only those providers that have opted to invest less on their systems.11 Given these contradictory positions, the FNPRM seeks comments on what is the appropriate balance to be drawn between providing seamless service accessibility to end-users, and allowing service providers to gain competitive advantages from their investments and innovations. B. Legal Basis 13. The authority for the actions taken in this FNPRM is contained in Sections 1, 4(i), 201, 202, 251(a), 253, 303(r), and 332(c)(1)(B) of the Communications Act 10 See ACS Comments at 6; MetroPCS Comments at 25 n.58. 11 See e.g., EDGE Reply Comments at 1, 8–9; see also, NDNC Comments at 3 (arguing against automating roaming rules because they create a disincentive for companies to further develop their networks). VerDate Aug<31>2005 13:11 Aug 29, 2007 Jkt 211001 of 1934, as amended, 47 U.S.C. 151, 154(i), 201, 202, 251(a), 253, 303(r), and 332(c)(1)(B). C. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply 14. 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 proposed rules, if adopted.12 The RFA generally defines the term ‘‘small entity’’ as having the same meaning as the terms ‘‘small business,’’ ‘‘small organization,’’ and ‘‘small governmental jurisdiction.’’ 13 In addition, the term ‘‘small business’’ has the same meaning as the term ‘‘small business concern’’ under the Small Business Act.14 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).15 15. In the following paragraphs, the Commission further describes and estimates the number of small entity licensees that may be affected by the rules the Commission adopts in this Report and Order. The Commission’s finding that automatic roaming is a common carrier service subject to protections outlined in sections 201, 202 and 208 of the Act affects all CMRS carriers that provide real-time, two-way switched voice or data service that are interconnected with the public switched network and utilize an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls. Such carriers are obligated to provide automatic roaming. As a common carrier obligation, the automatic roaming rule does not extend to non-interconnected services/features or services that are classified as information services or to services that are not CMRS. 16. Since this Report and Order applies to multiple services, this FRFA analyzes the number of small entities affected on a service-by-service basis. When identifying small entities that 12 5 U.S.C. 604(a)(3). U.S.C. 601(6). 14 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.’’ 15 15 U.S.C. 632. 13 5 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 50087 could be affected by the Commission’s new rules, this FRFA provides information that describes auction results, including the number of small entities that were winning bidders. However, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily reflect the total number of small entities currently in a particular service. The Commission does not generally require that licensees later provide business size information, except in the context of an assignment or a transfer of control application that involves unjust enrichment issues. 17. Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of ‘‘Paging’’ 16 and ‘‘Cellular and Other Wireless Telecommunications.’’ 17 Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year.18 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more.19 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year.20 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more.21 Thus, under this second category and size standard, the majority of firms can, again, be considered small. 18. Cellular Licensees. The SBA has developed a small business size standard for small businesses in the category ‘‘Cellular and Other Wireless 16 13 CFR 121.201, NAICS code 517211. CFR 121.201, NAICS code 517212. 18 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). 19 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.’’ 20 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). 21 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.’’ 17 13 E:\FR\FM\30AUP1.SGM 30AUP1 50088 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules rfrederick on PROD1PC67 with PROPOSALS Telecommunications.’’ 22 Under that SBA category, a business is small if it has 1,500 or fewer employees.23 For the census category of ‘‘Cellular and Other Wireless Telecommunications,’’ Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year.24 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more.25 Thus, under this category and size standard, the majority of firms can be considered small. 19. Broadband Personal Communications Service. 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.26 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.27 These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA.28 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 22 13 CFR 121.201, North American Industry Classification System (NAICS) code 517212. 23 Id. 24 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). 25 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.’’ 26 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 paras. 57–60 (1996); see also 47 CFR 24.720(b). 27 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 para. 60. 28 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. VerDate Aug<31>2005 13:11 Aug 29, 2007 Jkt 211001 licenses for Blocks D, E, and F.29 On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders.30 On January 26, 2001, the Commission completed the auction of 422 C and F PCS licenses in Auction 35.31 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. 20. Narrowband Personal Communications Service. 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.32 Through these auctions, the Commission awarded a total of forty-one licenses, 11 of which were obtained by four small businesses.33 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.34 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.35 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 29 FCC News, ‘‘Broadband PCS, D, E and F Block Auction Closes,’’ No. 71744 (rel. January 14, 1997). 30 See ‘‘C, D, E, and F Block Broadband PCS Auction Closes,’’ public notice, 14 FCC Rcd 6688 (WTB 1999). 31 See ‘‘C and F Block Broadband PCS Auction Closes; Winning Bidders Announced,’’ public notice, 16 FCC Rcd 2339 (2001). 32 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 para. 46 (1994). 33 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). 34 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 para. 40 (2000). 35 Id. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 than $15 million.36 The SBA has approved these small business size standards.37 A third auction commenced on October 3, 2001 and closed on October 16, 2001. Here, five bidders won 317 (MTA and nationwide) licenses.38 Three of these claimed status as a small or very small entity and won 311 licenses. 21. Specialized Mobile Radio. The Commission awards ‘‘small entity’’ bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years.39 The Commission awards ‘‘very small entity’’ bidding credits to firms that had revenues of no more than $3 million in each of the three previous calendar years.40 The SBA has approved these small business size standards for the 900 MHz Service.41 The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5, 1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 million size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band.42 A second auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 and included 23 BEA licenses. One bidder claiming small business status won five licenses.43 22. The auction of the 1,050 800 MHz SMR geographic area licenses for the 36 Id. 37 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. 38 See ‘‘Narrowband PCS Auction Closes,’’ public notice, 16 FCC Rcd 18663 (WTB 2001). 39 47 CFR 90.814(b)(1). 40 Id. 41 See Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated August 10, 1999. 42 See ‘‘Correction to public notice DA 96–586 ‘FCC Announces Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz SMR in Major Trading Areas,’ ’’ public notice, 18 FCC Rcd 18367 (WTB 1996). 43 See ‘‘Multi-Radio Service Auction Closes,’’ public notice, 17 FCC Rcd 1446 (WTB 2002). E:\FR\FM\30AUP1.SGM 30AUP1 rfrederick on PROD1PC67 with PROPOSALS Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were sold. Of the 22 winning bidders, 19 claimed ‘‘small business’’ status and won 129 licenses. Thus, combining all three auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small business. 23. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $3 million or $15 million (the special small business size standards), or have no more than 1,500 employees (the generic SBA standard for wireless entities, discussed supra). One firm has over $15 million in revenues. The Commission assumes, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities. 24. Advanced Wireless Services. 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.44 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. 25. Rural Radiotelephone Service. The Commission uses the SBA small business size standard applicable to cellular and other wireless telecommunication companies, i.e., an entity employing no more than 1,500 44 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). VerDate Aug<31>2005 13:11 Aug 29, 2007 Jkt 211001 persons.45 There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein. 26. Wireless Communications Services. 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.46 The SBA has approved these definitions.47 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. 27. 220 MHz Radio Service—Phase I Licensees. The 220 MHz service has both Phase I and Phase II licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz Band. The Commission has not developed a definition of small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, the Commission applies the small business size standard under the SBA rules applicable to ‘‘Cellular and Other Wireless Telecommunications’’ companies. This category provides that a small business is a wireless company employing no more than 1,500 persons.48 For the census category of ‘‘Cellular and Other Wireless Telecommunications,’’ Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for 45 13 CFR 121.201, NAICS code 517212. of the Commission’s Rules to Establish Part 27, the Wireless Communications Service (WCS), Report and Order, 12 FCC Rcd 10785, 10879 para. 194 (1997). 47 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. 48 13 CFR 121.201, NAICS code 517212. 46 Amendment PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 50089 the entire year.49 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more.50 Thus, under this category and size standard, the majority of firms can be considered small. 28. 220 MHz Radio Service—Phase II Licensees. The 220 MHz service has both Phase I and Phase II licenses. The Phase II 220 MHz service is subject to spectrum auctions. In the 220 MHz Third Report and Order, the Commission adopted a small business size standard for defining ‘‘small’’ and ‘‘very small’’ businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments.51 This small business standard indicates that 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.52 A ‘‘very small business’’ is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that do not exceed $3 million for the preceding three years.53 The SBA has approved these small size standards.54 Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998.55 In the first auction, 908 licenses were auctioned in three different-sized geographic areas: three nationwide licenses, 30 Regional Economic Area Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693 were sold.56 Thirty-nine small businesses won 373 licenses in the first 220 MHz auction. A second auction included 225 licenses: 49 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). 50 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.’’ 51 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, Third Report and Order, 12 FCC Rcd 10943, 11068– 70 paras. 291–295 (1997). 52 Id. at 11068 para. 291. 53 Id. 54 See Letter to Daniel Phythyon, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated January 6, 1998. 55 See generally ‘‘220 MHz Service Auction Closes,’’ public notice, 14 FCC Rcd 605 (WTB 1998). 56 See ‘‘FCC Announces It is Prepared to Grant 654 Phase II 220 MHz Licenses After Final Payment is Made,’’ public notice, 14 FCC Rcd 1085 (WTB 1999). E:\FR\FM\30AUP1.SGM 30AUP1 50090 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules rfrederick on PROD1PC67 with PROPOSALS 216 EA licenses and 9 EAG licenses. Fourteen companies claiming small business status won 158 licenses.57 A third auction included four licenses: 2 BEA licenses and 2 EAG licenses in the 220 MHz Service. No small or very small business won any of these licenses.58 29. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band 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.59 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.60 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.61 SBA approval of these definitions is not required.62 An auction of 52 Major Economic Area (MEA) licenses commenced on September 6, 2000, and closed on September 21, 2000.63 Of the 104 licenses auctioned, 96 licenses were 57 See ‘‘Phase II 220 MHz Service Spectrum Auction Closes,’’ public notice, 14 FCC Rcd 11218 (WTB 1999). 58 See ‘‘Multi-Radio Service Auction Closes,’’ public notice, 17 FCC Rcd 1446 (WTB 2002). 59 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). Service rules were amended in 2007, but no changes were made to small business size categories. See Service Rules for the 698–746, 747– 762 and 777–792 MHz Bands, WT Docket No. 06– 150, Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94–102, Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-Compatible Telephones, WT Docket No. 01–309, Biennial Regulatory Review— Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services, WT Docket 03–264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission’s Rules, WT Docket No. 06–169, Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, PS Docket No. 06–229, Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, WT Docket No. 96–86, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 8064 (2007). 60 Id. at 5343 para. 108. 61 Id. 62 Id. at 5343 para. 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). 63 See ‘‘700 MHz Guard Bands Auction Closes: Winning Bidders Announced,’’ public notice, 15 FCC Rcd 18026 (2000). VerDate Aug<31>2005 13:11 Aug 29, 2007 Jkt 211001 sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band 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.64 30. Upper 700 MHz Band Licenses. The Commission released a Report and Order authorizing service in the Upper 700 MHz band.65 An auction for these licenses, previously scheduled for January 13, 2003, was postponed.66 31. Lower 700 MHz Band Licenses. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits.67 The Commission has defined a small business as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years.68 A very small business is defined as 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.69 Additionally, the Lower 700 MHz Band has a third category of small business status that may be 64 See ‘‘700 MHz Guard Bands Auctions Closes: Winning Bidders Announced,’’ public notice, 16 FCC Rcd 4590 (WTB 2001). 65 Service Rules for the 746–764 and 776–794 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, Second Memorandum Opinion and Order, 16 FCC Rcd 1239 (2001). Service rules were amended in 2007, but no changes were made to small business size categories. See Service Rules for the 698–746, 747– 762 and 777–792 MHz Bands, WT Docket No. 06– 150, Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94–102, Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-Compatible Telephones, WT Docket No. 01–309, Biennial Regulatory Review— Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services, WT Docket 03–264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission’s Rules, WT Docket No. 06–169, Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, PS Docket No. 06–229, Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, WT Docket No. 96–86, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 8064 (2007). 66 See ‘‘Auction of Licenses for 747–762 and 777– 792 MHz Bands (Auction No. 31) Is Rescheduled,’’ public notice, 16 FCC Rcd 13079 (WTB 2003). 67 See Reallocation and Service Rules for the 698– 746 MHz Spectrum Band (Television Channels 52– 59), Report and Order, 17 FCC Rcd 1022 (2002). 68 Id. at 1087–88 para. 172. 69 Id. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 claimed for Metropolitan/Rural Service Area (MSA/RSA) licenses. The third category is 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.70 The SBA has approved these small size standards.71 An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs)) 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. Seventytwo of the winning bidders claimed small business, very small business or entrepreneur status and won a total of 329 licenses.72 A second auction commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 CMA licenses.73 Seventeen winning bidders claimed small or very small business status and won sixty licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses.74 32. Common Carrier Paging. The SBA has developed a small business size standard for wireless firms within the broad economic census category of ‘‘Paging.’’ 75 Under this category, the SBA deems a business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year.76 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more.77 Thus, under this category, the majority of firms can be considered small. In the Paging Third Report and Order, the Commission developed a small business size standard for ‘‘small businesses’’ and ‘‘very small 70 Id. at 1088 para. 173. Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated August 10, 1999. 72 See ‘‘Lower 700 MHz Band Auction Closes,’’ public notice, 17 FCC Rcd 17272 (WTB 2002). 73 See ‘‘Lower 700 MHz Band Auction Closes,’’ public notice, 18 FCC Rcd 11873 (WTB 2003). 74 Id. 75 13 CFR 121.201, NAICS code 517211. 76 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). 77 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.’’ 71 See E:\FR\FM\30AUP1.SGM 30AUP1 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules rfrederick on PROD1PC67 with PROPOSALS businesses’’ for purposes of determining their eligibility for special provisions such as bidding credits and installment payments.78 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.79 The SBA has approved these small business size standards.80 An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000.81 Of the 985 licenses auctioned, 440 were sold. Fiftyseven 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.82 Of those, the Commission estimates that 360 are small, under the SBA-approved small business size standard.83 33. Wireless Communications Services. 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.84 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 78 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, paras. 291–295, 62 FR 16004 (Apr. 3, 1997). 79 See Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from A. Alvarez, Administrator, SBA (Dec. 2, 1998) (SBA Dec. 2, 1998 Letter). 80 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, paras. 98–107 (1999). 81 Id. at 10085, para. 98. 82 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. 83 Id. 84 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. VerDate Aug<31>2005 13:11 Aug 29, 2007 Jkt 211001 standards.85 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. 34. Wireless Telephony. Wireless telephony includes cellular, personal communications services (PCS), and specialized mobile radio (SMR) telephony carriers. As noted earlier, the SBA has developed a small business size standard for ‘‘Cellular and Other Wireless Telecommunications’’ services.86 Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees.87 According to Commission data, 432 carriers reported that they were engaged in the provision of wireless telephony.88 The Commission has estimated that 221 of these are small under the SBA small business size standard. 35. Air-Ground Radiotelephone Service. The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service.89 The Commission will use SBA’s small business size standard applicable to ‘‘Cellular and Other Wireless Telecommunications,’’ i.e., an entity employing no more than 1,500 persons.90 There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and the Commission estimates that almost all of them qualify as small under the SBA small business size standard. 36. Aviation and Marine Radio Services. Small businesses in the aviation and marine radio services use a very high frequency (VHF) marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category ‘‘Cellular and Other Telecommunications,’’ which is 1,500 or fewer employees.91 Most applicants for recreational licenses are individuals. 85 SBA 86 13 Dec. 2, 1998 Letter. CFR 121.201, NAICS code 517212. 87 Id. 88 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. 89 The service is defined in section 22.99 of the Commission’s Rules, 47 CFR 22.99. 90 13 CFR 121.201, NAICS code 517212. 91 13 CFR 121.201, NAICS code 517212. PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 50091 Approximately 581,000 ship station licensees and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage requirements of any statute or treaty. For purposes of evaluation in this analysis, the Commission estimates that there are up to approximately 712,000 licensees that are small businesses (or individuals) under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875– 157.4500 MHz (ship transmit) and 161.775–162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a ‘‘small’’ business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $15 million dollars. In addition, a ‘‘very small’’ business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $3 million dollars.92 There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as ‘‘small’’ businesses under the above special small business size standards. 37. Fixed Microwave Services. Fixed microwave services include common carrier,93 private operational-fixed,94 and broadcast auxiliary radio services.95 At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business 92 Amendment of the Commission’s Rules Concerning Maritime Communications, PR Docket No. 92–257, Third Report and Order and Memorandum Opinion and Order, 13 FCC Rcd 19853 (1998). 93 See 47 CFR 101 et seq. (formerly, Part 21 of the Commission’s Rules) for common carrier fixed microwave services (except Multipoint Distribution Service). 94 Persons eligible under parts 80 and 90 of the Commission’s Rules can use Private OperationalFixed Microwave services. See 47 CFR Parts 80 and 90. Stations in this service are called operationalfixed to distinguish them from common carrier and public fixed stations. Only the licensee may use the operational-fixed station, and only for communications related to the licensee’s commercial, industrial, or safety operations. 95 Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission’s rules. See 47 CFR 74. This service is available to licensees of broadcast stations and to broadcast and cable network entities. Broadcast auxiliary microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between two points such as a main studio and an auxiliary studio. The service also includes mobile television pickups, which relay signals from a remote location back to the studio. E:\FR\FM\30AUP1.SGM 30AUP1 50092 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category ‘‘Cellular and Other Telecommunications,’’ which is 1,500 or fewer employees.96 The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA’s small business size standard. Consequently, the Commission estimates that there are up to 22,015 common carrier fixed licensees and up to 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies adopted herein. The Commission noted, however, that the common carrier microwave fixed licensee category includes some large entities. 38. Offshore Radiotelephone Service. This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico.97 There are presently approximately 55 licensees in this service. The Commission is unable to estimate at this time the number of licensees that would qualify as small under the SBA’s small business size standard for ‘‘Cellular and Other Wireless Telecommunications’’ services.98 Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees.99 39. 39 GHz Service. The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years.100 An additional size standard for ‘‘very small business’’ is: An entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.101 The SBA has approved these small business size 96 13 CFR 121.201, NAICS code 517212. service is governed by Subpart I of Part 22 of the Commission’s rules. See 47 CFR 22.1001 through 22.1037. 98 13 CFR 121.201, NAICS code 517212. 99 Id. 100 See Amendment of the Commission’s Rules Regarding the 37.0–38.6 GHz and 38.6–40.0 GHz Bands, ET Docket No. 95–183, Report and Order, 63 FR 6079 (Feb. 6, 1998). 101 Id. rfrederick on PROD1PC67 with PROPOSALS 97 This VerDate Aug<31>2005 13:11 Aug 29, 2007 Jkt 211001 standards.102 The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses. Consequently, the Commission estimates that 18 or fewer 39 GHz licensees are small entities that may be affected by the rules and polices adopted herein. 40. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service comprises Multichannel Multipoint Distribution Service (MMDS) systems and Multipoint Distribution Service (MDS).103 MMDS systems, often referred to as ‘‘wireless cable,’’ transmit video programming to subscribers using the microwave frequencies of MDS and Educational Broadband Service (formerly known as Instructional Television Fixed Service).104 Wireless cable systems use 2 GHz band frequencies of the Broadband Radio Service (‘‘BRS’’), formerly Multipoint Distribution Service (‘‘MDS’’),105 and the Educational Broadband Service (‘‘EBS’’), formerly Instructional Television Fixed Service (‘‘ITFS’’),106 to transmit video programming and provide broadband services to residential subscribers.107 These 102 See Letter to Kathleen O’Brien Ham, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA (Feb. 4, 1998). 103 Amendment of Parts 1, 21, 73, 74, and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150–2162 and 2500–2690 MHz Bands, WT Docket No. 03–66, RM–10586, Report and Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 14165 (2004). 104 See id. 105 MDS, also known as Multichannel Multipoint Distribution Service (‘‘MMDS’’), is regulated by part 21 of the Commission’s rules; see 47 CFR Part 21, subpart K; and has been renamed the Broadband Radio Service (BRS); see Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150–2162 and 2500– 2690 MHz Bands; Part 1 of the Commission’s Rules—Further Competitive Bidding Procedures; Amendment of Parts 21 and 74 to Enable Multipoint Distribution Service and the Instructional Television Fixed Service Amendment of Parts 21 and 74 to Engage in Fixed Two-Way Transmissions; Amendment of Parts 21 and 74 of the Commission’s Rules With Regard to Licensing in the Multipoint Distribution Service and in the Instructional Television Fixed Service for the Gulf of Mexico, 19 FCC Rcd 14165 (2004) (‘‘MDS/ITFS Order’’). 106 ITFS systems are regulated by Part 74 of the Commission’s rules; see 47 CFR Part 74, subpart I. ITFS, an educational service, has been renamed the Educational Broadband Service (EBS); see MDS/ ITFS Order, 19 FCC Rcd 14165. ITFS licensees, however, are permitted to lease spectrum for MDS operation. 107 See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Eleventh Annual Report, 20 FCC Rcd PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 services were originally designed for the delivery of multichannel video programming, similar to that of traditional cable systems, but over the past several years licensees have focused their operations instead on providing two-way high-speed Internet access services.108 We estimate that the number of wireless cable subscribers is approximately 100,000, as of March 2005. Local Multipoint Distribution Service (‘‘LMDS’’) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications.109 As described below, the SBA small business size standard for the broad census category of Cable and Other Program Distribution, which consists of such entities generating $13.5 million or less in annual receipts, appears applicable to MDS, ITFS and LMDS.110 Other standards also apply, as described. 41. The Commission has defined small MDS (now BRS) and LMDS entities in the context of Commission license auctions. In the 1996 MDS auction,111 the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years.112 This definition of a small entity in the context of MDS auctions has been approved by the SBA.113 In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. At this time, the Commission estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities.114 MDS licensees and wireless cable operators that did not receive their licenses as a result of the MDS auction fall under the SBA small business size standard for Cable and 2507, 2565 para. 131 (2006) (‘‘2006 Cable Competition Report’’). 108 Id. 109 See Local Multipoint Distribution Service, 12 FCC Rcd 12545 (1997). 110 13 CFR 121.201, NAICS code 517510. 111 MDS Auction No. 6 began on November 13, 1995, and closed on March 28, 1996. (67 bidders won 493 licenses.) 112 47 CFR 21.961(b)(1). 113 See ITFS Order, 10 FCC Rcd at 9589. 114 47 U.S.C. 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of Section 309(j) of the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-auction licenses, the applicable standard is SBA’s small business size standards for ‘‘other telecommunications’’ (annual receipts of $13.5 million or less). See 13 CFR 121.201, NAICS code 517910. E:\FR\FM\30AUP1.SGM 30AUP1 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules rfrederick on PROD1PC67 with PROPOSALS Other Program Distribution. Information available to us indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $13.5 million annually. Therefore, we estimate that there are approximately 850 small entity MDS (or BRS) providers, as defined by the SBA and the Commission’s auction rules. 42. Educational institutions are included in this analysis as small entities; however, the Commission has not created a specific small business size standard for ITFS (now EBS).115 The Commission estimates that there are currently 2,032 ITFS (or EBS) licensees, and all but 100 of the licensees are held by educational institutions. Thus, the Commission estimates that at least 1,932 ITFS licensees are small entities. 43. Local Multipoint Distribution Service. Local Multipoint Distribution Service (LMDS) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications.116 The auction of the 1,030 Local Multipoint Distribution Service (LMDS) licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years.117 An additional small business size standard for ‘‘very small business’’ was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.118 The SBA has approved these small business size standards in the context of LMDS auctions.119 There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission reauctioned 161 licenses; there were 40 winning bidders. 44. 218–219 MHz Service. The first auction of 218–219 MHz spectrum 115 In addition, the term ‘‘small entity’’ within SBREFA applies to small organizations (nonprofits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of less than 50,000). 5 U.S.C. 601(4)–(6). The Commission does not collect annual revenue data on ITFS licensees. 116 See Local Multipoint Distribution Service, Second Report and Order, 12 FCC Rcd 12545 (1997). 117 Id. 118 See id. 119 See Letter to Dan Phythyon, Chief, Wireless Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA (Jan. 6, 1998). VerDate Aug<31>2005 13:11 Aug 29, 2007 Jkt 211001 resulted in 170 entities winning licenses for 594 Metropolitan Statistical Area (MSA) licenses. Of the 594 licenses, 557 were won by entities qualifying as a small business. For that auction, the small business size standard was an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year for the previous two years.120 In the 218–219 MHz Report and Order and Memorandum Opinion and Order, the Commission established a small business size standard for a ‘‘small business’’ as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and their affiliates, has average annual gross revenues not to exceed $15 million for the preceding three years.121 A ‘‘very small business’’ is defined as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and its affiliates, has average annual gross revenues not to exceed $3 million for the preceding three years.122 Currently, no second auction is scheduled. 45. 24 GHz—Incumbent Licensees. This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of ‘‘Cellular and Other Wireless Telecommunications’’ companies. This category provides that such a company is small if it employs no more than 1,500 persons.123 The Commission believes that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent 124 and TRW, Inc. It is the Commission’s understanding that Teligent and its related companies have less than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent 120 Implementation of Section 309(j) of the Communications Act—Competitive Bidding, PP Docket No. 93–253, Fourth Report and Order, 59 FR 24947 (May 13, 1994). 121 Amendment of Part 95 of the Commission’s Rules to Provide Regulatory Flexibility in the 218– 219 MHz Service, WT Docket No. 98–169, Report and Order and Memorandum Opinion and Order, 64 FR 59656 (Nov. 3, 1999). 122 Amendment of Part 95 of the Commission’s Rules to Provide Regulatory Flexibility in the 218– 219 MHz Service, WT Docket No. 98–169, Report and Order and Memorandum Opinion and Order, 64 FR 59656 (Nov. 3, 1999). 123 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 124 Teligent acquired the DEMS licenses of FirstMark, the only licensee other than TRW in the 24 GHz band whose license has been modified to require relocation to the 24 GHz band. PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 50093 licensee in the 24 GHz band is a small business entity. 46. 24 GHz—Future Licensees. With respect to new applicants in the 24 GHz band, the small business size standard for ‘‘small business’’ is an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not in excess of $15 million.125 ‘‘Very small business’’ in the 24 GHz band is an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years.126 The SBA has approved these small business size standards.127 These size standards will apply to the future auction, if held. 47. Internet Service Providers. The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs ‘‘provide clients access to the Internet and generally provide related services such as Web hosting, Web page designing, and hardware or software consulting related to Internet connectivity.’’ 128 Under the SBA size standard, such a business is small if it has average annual receipts of $23 million or less.129 According to Census Bureau data for 2002, there were 2,529 firms in this category that operated for the entire year.130 Of these, 2,437 firms had annual receipts of under $10 million, and an additional 47 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by the Commission’s action. 48. Part 15 Device Manufacturers. The Commission has not developed a definition of small entities applicable to unlicensed communications devices manufacturers. Therefore, the Commission will utilize the SBA definition applicable to Radio and Television Broadcasting and Wireless Communications Equipment 125 Amendments to Parts 1, 2, 87 and 101 of the Commission’s Rules to License Fixed Services at 24 GHz, Report and Order, 15 FCC Rcd 16934, 16967 (2000); see also 47 CFR 101.538(a)(2). 126 Amendments to Parts 1, 2, 87 and 101 of the Commission’s Rules to License Fixed Services at 24 GHz, Report and Order, 15 FCC Rcd 16934, 16967 (2000); see also 47 CFR 101.538(a)(1). 127 See Letter to Margaret W. Wiener, Deputy Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from Gary M. Jackson, Assistant Administrator, SBA (July 28, 2000). 128 U.S. Census Bureau, ‘‘2002 NAICS Definitions: 518111 Internet Service Providers’’ (Feb. 2004) https://www.census.gov. 129 13 CFR 121.201, NAICS code 518111 (changed from previous code 514191, ‘‘On-Line Information Services,’’ in Oct. 2002). 130 U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, ‘‘Establishment and Firm Size (Including Legal Form of Organization),’’ Table 4, NAICS code 514191 (issued Oct. 2000). E:\FR\FM\30AUP1.SGM 30AUP1 50094 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules rfrederick on PROD1PC67 with PROPOSALS Manufacturing. 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.’’ 131 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.132 According to Census Bureau data for 2002, there were 1,041 establishments in this category that operated for the entire year.133 Of this total, 1,010 had employment of under 500, and an additional 13 had employment of 500 to 999.134 Thus, under this size standard, the majority of firms can be considered small. 49. Telephone Apparatus Manufacturing. The Census Bureau defines this category as follows: ‘‘This industry comprises establishments primarily engaged in manufacturing wire telephone and data communications equipment. These products may be standalone or boardlevel components of a larger system. Examples of products made by these establishments are central office switching equipment, cordless telephones (except cellular), PBX equipment, telephones, telephone answering machines, LAN modems, multi-user modems, and other data communications equipment, such as 131 U.S. Census Bureau, 2002 NAICS Definitions, ‘‘334220 Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing’’; https://www.census.gov/epcd/ naics02/def/NDEF334.HTM#N3342. 132 13 CFR 121.201, NAICS code 334220. 133 U.S. Census Bureau, American FactFinder, 2002 Economic Census, Industry Series, Industry Statistics by Employment Size, NAICS code 334220 (released May 26, 2005); https:// 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. 134 Id. An additional 18 establishments had employment of 1,000 or more. VerDate Aug<31>2005 13:11 Aug 29, 2007 Jkt 211001 bridges, routers, and gateways.’’135 The SBA has developed a small business size standard for Telephone Apparatus Manufacturing, which is: All such firms having 1,000 or fewer employees.136 According to Census Bureau data for 2002, there were a total of 518 establishments in this category that operated for the entire year.137 Of this total, 511 had employment of under 1,000, and an additional 7 had employment of 1,000 to 2,499.138 Thus, under this size standard, the majority of firms can be considered small. 50. Other Communications Equipment Manufacturing. The Census Bureau defines this category as follows: ‘‘This industry comprises establishments primarily engaged in manufacturing communications equipment (except telephone apparatus, and radio and television broadcast, and wireless communications equipment).’’139 The SBA has developed a small business size standard for Other Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees.140 According to Census Bureau data for 2002, there were a total of 503 establishments in this category that operated for the entire year.141 Of this 135 U.S. Census Bureau, 2002 NAICS Definitions, ‘‘334210 Telephone Apparatus Manufacturing’’; https://www.census.gov/epcd/naics02/def/ NDEF334.HTM#N3342. 136 13 CFR 121.201, NAICS code 334210. 137 U.S. Census Bureau, American FactFinder, 2002 Economic Census, Industry Series, Industry Statistics by Employment Size, NAICS code 334210 (released May 26, 2005); https:// 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 450. 138 Id. An additional 4 establishments had employment of 2,500 or more. 139 U.S. Census Bureau, 2002 NAICS Definitions, ‘‘334290 Other Communications Equipment Manufacturing’’; https://www.census.gov/epcd/ naics02/def/NDEF334.HTM#N3342. 140 13 CFR 121.201, NAICS code 334290. 141 U.S. Census Bureau, American FactFinder, 2002 Economic Census, Industry Series, Industry Statistics by Employment Size, NAICS code 334290 (released May 26, 2005); https:// 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 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 total, 493 had employment of under 500, and an additional 7 had employment of 500 to 999.142 Thus, under this size standard, the majority of firms can be considered small. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 51. Should the Commission decide to extend the automatic roaming requirement to non-interconnected services or features, including services that have been classified as information services, such as broadband Internet access service, or other non-CMRS services, the only reporting or recordkeeping costs incurred will be administrative costs to ensure that an entity’s practices are in compliance with the automatic rule. The compliance requirement is that carriers must provide automatic roaming to any requesting technologically compatible carrier outside of the requesting carrier’s home market on reasonable and nondiscriminatory terms and conditions.143 The Commission seeks comment on the possible burden such requirements would place on small entities. Also, the Commission seeks comment on whether a special approach toward any possible compliance burden on small entities might be appropriate. Entities, especially small businesses, are encouraged to quantify the costs and benefits of any compliance requirement that may result from this proceeding. E. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered 52. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.144 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 471. 142 Id. An additional 3 establishments had employment of 1,000 or more. 143 See Further Notice of Proposed Rulemaking, Section 78. 144 See 5 U.S.C. 603(c). E:\FR\FM\30AUP1.SGM 30AUP1 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Proposed Rules 53. The Commission’s primary objective in this proceeding is to facilitate seamless wireless communications for consumers, even when they are outside of the coverage area of their own service providers. The FNPRM seeks to build on the decisions made in the Report and Order. In the Report and Order, the Commission clarifies that the automatic roaming is a common carrier obligation and adopts an automatic roaming rule that is applicable to services offered by CMRS carriers that are real-time, two-way switched voice or data services that are interconnected with the public switched network, and to push-to-talk and text messaging service.145 Recognizing wireless subscribers’ increasing reliance on mobile telephony services, especially the growing demand of data services by consumers, the FNPRM seeks comment on whether the Commission should extend the applicability of the automatic roaming requirements to noninterconnected services or features, including services that have been classified as information services, such as wireless broadband Internet access service, or other non-CMRS services. 54. To the extent that addressing the issue raised in the FNPRM requires modifying the applicability of the automatic roaming rules, the Commission seeks comment on the effect that such rule changes will have on small entities, on whether alternative rules should be adopted for small entities in particular, and on what effect such alternative rules would have on those entities. The Commission invites comment on ways in which the Commission can achieve its goals while at the same time impose minimal burdens on small wireless service providers. Below, the Commission summarizes the issues raised in the FNPRM. 55. Mobile Data Service Roaming. The item seeks comment on whether the Commission should extend automatic rfrederick on PROD1PC67 with PROPOSALS 145 See 146 See generally, Wireless Broadband Internet Access Declaratory Ruling. 22 FCC Rcd 5901. supra paras. 2, 65–67. VerDate Aug<31>2005 13:11 Aug 29, 2007 roaming obligations to noninterconnected services and features, including information services. To the extent that a covered carrier might be a small entity, the Commission believes that extending the scope of automatic roaming obligation would be a benefit rather than a burden. 56. Technical Issues. The item also seeks comment on whether there are any special technical issues (or otherwise) associated with roaming among data networks that may not exist when roaming among CMRS carriers’ interconnected voice networks. In the FNPRM, the Commission noted that it would be concerned if requiring a carrier to offer roaming service on its data network to the customers of other carriers resulted in the carrier facing capacity constraints that adversely affect its own customers. The FNPRM, therefore, asks whether a carrier should have the right to limit access to its network by roamers, and what parameters should be considered as justification for such limits. 57. Jurisdiction over Information Service. In the Wireless Broadband Classification Order,146 the Commission determined that mobile wireless broadband Internet access service is an information service, and that it is not CMRS. If the Commission were to impose an automatic roaming on mobile wireless broadband Internet access service as proposed in the FNPRM, the jurisdictional issue should be considered regarding how could we treat the information service for roaming purpose. For example, could the Commission base the requirement on Title I ancillary jurisdiction, or on the Title III regulation of radio services? Alternatively, the FNPRM seeks comment on whether the Commission should restrict the automatic roaming mandate only to non-interconnected data services that are not classified as information services. Jkt 211001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 50095 F. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules 58. None. Ordering Clauses 59. Accordingly, it is ordered that, pursuant to the authority contained in Sections 1, 4(i), 201, 202, 251(a), 253, 303(r), and 332(c)(1)(B) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 201, 202, 251(a), 253, 303(r), and 332(c)(1)(B), and Section 1.425 of the Commission’s rules, 47 CFR 1.425, this Report and Order and FNPRM is hereby adopted. 60. It is further ordered that Sections 20.3 and 20.12 of the Commission’s rules are amended as specified in Appendix A, and such rule amendments shall be effective 60 days after the date of publication of the text thereof in the Federal Register. 61. It is further ordered that the Joint Petition for Commission Inquiry Pursuant to Section 403 of the Communications Act filed by AIRPEAK Communications, LLC, Airtel Wireless LLC, Cleveland Unlimited, Inc., Leap Wireless International, Inc., MetroPCS Communications, Inc., Punxsutawney Communications, Rural Telecommunications Group, Inc., and Southern Communications Services, Inc. d/b/a SouthernLINC Wireless, on April 25, 2006 is hereby denied. 62. It is further ordered that the Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order and the FNPRM, including the Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. William F. Caton, Deputy Secretary. [FR Doc. E7–17123 Filed 8–29–07; 8:45 am] BILLING CODE 6712–01–P E:\FR\FM\30AUP1.SGM 30AUP1

Agencies

FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 72, Number 168 (Thursday, August 30, 2007)]
[Proposed Rules]
[Pages 50085-50095]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-17123]

=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 20

[WT Docket No. 05-265, FCC No. 07-143]

Reexamination of Roaming Obligations of Commercial Mobile Radio
Service Providers

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this Further Notice of Proposed Rulemaking (FNPRM), the
Federal Communications Commission (FCC) seeks comment on whether it
should extend the automatic roaming obligation of commercial mobile
radio service (CMRS) carriers to non-interconnected services or
features, including services that have been classified as information
services, such as wireless broadband Internet access service, or other
non-CMRS services. The FCC further seeks comment on the implications of
extending the automatic roaming obligation in this manner.

DATES: Comments due on or before October 29, 2007 and reply comments
are due on or before November 28, 2007.

ADDRESSES: You may submit comments, identified by WT Docket No. 05-265,
by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: https://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
E-mail: Include the docket number in the subject line of
the message.
People With Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Christina Clearwater at (202) 418-
1893, Christina.Clearwater@fcc.gov, Spectrum and Competition Policy
Division, Wireless Telecommunications Bureau; Won Kim at (202) 418-
1368, Won.Kim@fcc.gov, Spectrum and Competition Policy Division,
Wireless Telecommunications Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking (FNPRM), WT Docket No. 05-265,
FCC No. 07-143, adopted August 7, 2007 and released August 16, 2007.
The full text of the FNPRM is available for public inspection on the
Commission's Internet site at https://www.fcc.gov. It is also available
for inspection and copying during regular business hours in the FCC
Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC
20554. The full text of this document also may be purchased from the
Commission's duplication contractor, Best Copy and Printing Inc.,
Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554;
telephone (202) 488-5300; fax (202) 488-5563; e-mail FCC@BCPIWEB.COM.

Initial Paperwork Reduction Act of 1995 Analysis

This document does not contain an information collection subject to
the Paperwork Reduction Act of 1995, and therefore does not contain any
new or modified ``information collection burden for small business
concerns with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002.

Synopsis

1. In the FNPRM, the FCC seeks comment on whether it should extend
the automatic roaming obligation of CRMS carriers to non-interconnected
services or features, including services that have been classified as
information services, such as wireless broadband Internet access
service, or other non-interconnected non-CMRS services offered by CMRS
carriers, and on the legal and policy basis for doing so. The FCC
further seeks comment on the implications of extending the automatic
roaming obligation in this manner.
2. To what extent, if any, would requiring roaming access to non-
interconnected services and features undermine carriers' incentive to
innovate or invest in mobile wireless broadband network facilities?
Would the potential for undermining innovation be mitigated by
conditioning roaming access to non-interconnected services and
features, as the Commission has, for example, with push-to-talk and
SMS? Namely, should the Commission require that the requesting carrier
must offer the requested service or feature to its subscribers on its
own home network; that roaming must be technically feasible; and any
changes to the would-be host carrier's network that are necessary to
accommodate roaming requests extending to these services and features
must be economically reasonable?
3. If the Commission were to extend automatic roaming obligations
to non-interconnected services and features, are there any special
issues (technical, economic, or otherwise) associated with roaming data
networks that may not exist when roaming among CMRS carriers'
interconnected voice networks? For example, are there any issues
regarding network capacity, network integrity, or network security? The
Commission seeks comment on the effect that automatic roaming would
have on the capacity of data networks and the ability of carriers to
offer full access to their own customers. The Commission would be
concerned if requiring a carrier to offer roaming service on its data
network to the customers of other carriers resulted in the carrier
facing capacity constraints that adversely affect its own customers.
The Commission therefore asks whether a carrier should have the right
to limit access to its network by roamers, and what parameters should
be considered as justification for such limits. The Commission invites
commenters to suggest specific standards for determining when the
requirement should or should not apply.
4. If the Commission were to extend automatic roaming obligations
to non-interconnected services and features, should all such services
and features be included? Are there any public interest reasons to
treat narrowband and broadband data services differently in the context
of automatic roaming? In the Wireless Broadband Classification
Order,\1\ the Commission determined that mobile wireless broadband
Internet access service is an information service, and that it is not
CMRS. If the

[[Page 50086]]

Commission were to impose an automatic roaming obligation on mobile
wireless broadband Internet access services, how could it do so in
accordance with the determinations in that order? For example, could
the Commission base the requirement on Title I ancillary jurisdiction,
or on the Title III regulation of radio services? Or should the
Commission restrict the automatic roaming mandate only to non-
interconnected data services that are not classified as information
services? The Commission notes that while a few CMRS providers have
requested that the Commission require automatic roaming for all
services, including non-interconnected data services provided over
enhanced digital networks, other CMRS providers, including several
small carriers, are against imposing automatic roaming rules for
enhanced data services, arguing that forced roaming would thwart market
forces by benefiting only those providers that have opted to invest
less on their systems. Given these contradictory positions, what is the
appropriate balance to be drawn between providing seamless service
accessibility to end-users, and allowing service providers to gain
competitive advantages from their investments and innovations?
---------------------------------------------------------------------------

\1\ See generally, Appropriate Regulatory Treatment for
Broadband Access to the Internet Over Wireless Networks, Declaratory
Ruling, 22 FCC Rcd 5901 (2007).
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Ex Parte Presentations

5. The rulemaking shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules.\2\
Persons making oral ex parte presentations are reminded that memoranda
summarizing the presentations must contain summaries of the substance
of the presentations and not merely a listing of the subjects
discussed. More than a one or two sentence description of the views and
arguments presented generally is required.\3\ Other requirements
pertaining to oral and written presentations are set forth in Section
1.1206(b) of the Commission's rules.\4\
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\2\ 47 CFR 1.200 et seq.
\3\ See 47 CFR 1.1206(b)(2).
\4\ 47 CFR 1.1206(b).
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Comment Filing Procedures

6. Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules,\5\ interested parties may file comments on or before 60days
after publication of the FNPRM in the Federal Register and reply
comments regarding the FNPRM may be filed on or before 90 days after
publication of the FNPRM in the Federal Register. All filings related
to this FNPRM should refer to WT Docket No. 05-265. Comments may be
filed using: (1) The Commission's Electronic Comment Filing System
(ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by
filing paper copies.\6\
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\5\ 47 CFR 1.415, 1.419.
\6\ See Electronic Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998).
---------------------------------------------------------------------------

Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: https://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: https://www.regulations.gov. Filers
should follow the instructions provided on the website for submitting
comments.
ECFS filers must transmit one electronic copy of the
comments for WT Docket No. 05-265. In completing the transmittal
screen, filers should include their full name, U.S. Postal Service
mailing address, and WT Docket No. 05-265. Parties may also submit an
electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to ecfs@fcc.gov and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. Filings can be sent by
hand or messenger delivery, by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail (although the
Commission continues to experience delays in receiving U.S. Postal
Service mail). All filings must be addressed to the Commission's
Secretary, Marlene H. Dortch, Office of the Secretary, Federal
Communications Commission, 445 12th Street, SW., Washington, DC 20554.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
7. Parties should send a copy of their filings to: Christina
Clearwater, Wireless Telecommunications Bureau, 445 12th Street, SW.,
Washington, DC 20554, or by e-mail to christina.clearwater@fcc.gov and
Won Kim, Wireless Telecommunications Bureau, 445 12th Street, SW.,
Washington, DC 20554, or by e-mail to won.kim@fcc.gov. Parties shall
also serve one copy with the Commission's copy contractor, Best Copy
and Printing, Inc. (BCPI), Portals II, Room CY-B402, 445 12th Street,
SW., Washington, DC 20554, (202) 488-5300, or via e-mail to
fcc@bcpiweb.com.
8. Documents in WT Docket No. 05-265 will be available for public
inspection and copying during business hours at the FCC Reference
Information Center, Portals II, Room CY-A257, 445 12th Street, SW.,
Washington, DC 20554. The documents may also be purchased from BCPI,
telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562,
e-mail fcc@bcpiweb.com.
9. 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). Contact the
FCC to request reasonable accommodations for filing comments
(accessible format documents, sign language interpreters, CARTS, etc.)
by e-mail: FCC504@fcc.gov; phone: 202-418-0530 (voice), 202-418-0432
(TTY).

Initial Regulatory Flexibility Analysis

10. As required by the Regulatory Flexibility Act of 1980, as
amended (the ``RFA''),\7\ the Commission has prepared this Initial
Regulatory Flexibility Analysis (``IRFA'') of the possible significant
economic impact of the policies and rules proposed in the Further
Notice of Proposed Rulemaking (``FNPRM'') on a substantial number of
small entities. Written public comments are requested on this IRFA.
Comments must be identified as responses to the IRFA and must be filed
by the deadlines for comments on the FNPRM provided in the item. The
Commission will send a copy of the FNPRM, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration
(``SBA'').\8\ In addition, the FNPRM and IRFA (or summaries thereof)
will be published in the Federal Register.\9\
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\7\ 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. 104-121, Title II, 110 Stat. 857 (1996).
\8\ See 5 U.S.C. 603(a).
\9\ See 5 U.S.C. 603(a).
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A. Need for, and Objectives of, the Proposed Rules

11. Building on the decisions made in the Report and Order, the
FNPRM

[[Page 50087]]

encompasses issues concerning the applicability of the automatic
roaming obligation for all wireless providers. In the Report and Order,
the Commission clarifies that the automatic roaming is a common carrier
obligation and adopts an automatic roaming rule that is applicable to
services offered by CMRS carriers that are real-time, two-way switched
voice or data services that are interconnected with the public switched
network, and to push-to-talk and text messaging service. Recognizing
wireless subscribers' increasing reliance on mobile telephony services,
especially the growing demand of data services by consumers, the FNPRM
seeks comment on whether the Commission should extend the applicability
of the automatic roaming requirements to non-interconnected services or
features, including services that have been classified as information
services, such as wireless broadband Internet access service, or other
non-CMRS services. The FNPRM further seeks comment on the implications
of extending the automatic roaming obligation in this manner. The
Commission's primary objective in this proceeding is to facilitate
seamless wireless communications for consumers, even when they are
outside of the coverage area of their own service providers.
12. In the FNPRM, the Commission notes that while a few CMRS
providers have requested that the Commission require automatic roaming
for all services, including non-interconnected data services provided
over enhanced digital networks,\10\ other CMRS providers, including
several small carriers, are against imposing automatic roaming rules
for enhanced data services, arguing that forced roaming would thwart
market forces by benefiting only those providers that have opted to
invest less on their systems.\11\ Given these contradictory positions,
the FNPRM seeks comments on what is the appropriate balance to be drawn
between providing seamless service accessibility to end-users, and
allowing service providers to gain competitive advantages from their
investments and innovations.
---------------------------------------------------------------------------

\10\ See ACS Comments at 6; MetroPCS Comments at 25 n.58.
\11\ See e.g., EDGE Reply Comments at 1, 8-9; see also, NDNC
Comments at 3 (arguing against automating roaming rules because they
create a disincentive for companies to further develop their
networks).
---------------------------------------------------------------------------

B. Legal Basis

13. The authority for the actions taken in this FNPRM is contained
in Sections 1, 4(i), 201, 202, 251(a), 253, 303(r), and 332(c)(1)(B) of
the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 201,
202, 251(a), 253, 303(r), and 332(c)(1)(B).

C. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply

14. 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 proposed rules, if adopted.\12\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \13\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\14\ 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).\15\
---------------------------------------------------------------------------

\12\ 5 U.S.C. 604(a)(3).
\13\ 5 U.S.C. 601(6).
\14\ 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.''
\15\ 15 U.S.C. 632.
---------------------------------------------------------------------------

15. In the following paragraphs, the Commission further describes
and estimates the number of small entity licensees that may be affected
by the rules the Commission adopts in this Report and Order. The
Commission's finding that automatic roaming is a common carrier service
subject to protections outlined in sections 201, 202 and 208 of the Act
affects all CMRS carriers that provide real-time, two-way switched
voice or data service that are interconnected with the public switched
network and utilize an in-network switching facility that enables the
provider to reuse frequencies and accomplish seamless hand-offs of
subscriber calls. Such carriers are obligated to provide automatic
roaming. As a common carrier obligation, the automatic roaming rule
does not extend to non-interconnected services/features or services
that are classified as information services or to services that are not
CMRS.
16. Since this Report and Order applies to multiple services, this
FRFA analyzes the number of small entities affected on a service-by-
service basis. When identifying small entities that could be affected
by the Commission's new rules, this FRFA provides information that
describes auction results, including the number of small entities that
were winning bidders. However, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily reflect the total number of small entities currently in a
particular service. The Commission does not generally require that
licensees later provide business size information, except in the
context of an assignment or a transfer of control application that
involves unjust enrichment issues.
17. Wireless Service Providers. The SBA has developed a small
business size standard for wireless firms within the two broad economic
census categories of ``Paging'' \16\ and ``Cellular and Other Wireless
Telecommunications.'' \17\ Under both categories, the SBA deems a
wireless business to be small if it has 1,500 or fewer employees. For
the census category of Paging, Census Bureau data for 2002 show that
there were 807 firms in this category that operated for the entire
year.\18\ Of this total, 804 firms had employment of 999 or fewer
employees, and three firms had employment of 1,000 employees or
more.\19\ Thus, under this category and associated small business size
standard, the majority of firms can be considered small. For the census
category of Cellular and Other Wireless Telecommunications, Census
Bureau data for 2002 show that there were 1,397 firms in this category
that operated for the entire year.\20\ Of this total, 1,378 firms had
employment of 999 or fewer employees, and 19 firms had employment of
1,000 employees or more.\21\ Thus, under this second category and size
standard, the majority of firms can, again, be considered small.
---------------------------------------------------------------------------

\16\ 13 CFR 121.201, NAICS code 517211.
\17\ 13 CFR 121.201, NAICS code 517212.
\18\ 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).
\19\ 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.''
\20\ 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).
\21\ 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.''
---------------------------------------------------------------------------

18. Cellular Licensees. The SBA has developed a small business size
standard for small businesses in the category ``Cellular and Other
Wireless

[[Page 50088]]

Telecommunications.'' \22\ Under that SBA category, a business is small
if it has 1,500 or fewer employees.\23\ For the census category of
``Cellular and Other Wireless Telecommunications,'' Census Bureau data
for 2002 show that there were 1,397 firms in this category that
operated for the entire year.\24\ Of this total, 1,378 firms had
employment of 999 or fewer employees, and 19 firms had employment of
1,000 employees or more.\25\ Thus, under this category and size
standard, the majority of firms can be considered small.
---------------------------------------------------------------------------

\22\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517212.
\23\ Id.
\24\ 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).
\25\ 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.''
---------------------------------------------------------------------------

19. Broadband Personal Communications Service. 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.\26\ 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.\27\ These
small business size standards, in the context of broadband PCS
auctions, have been approved by the SBA.\28\ 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.\29\ On March 23,
1999, the Commission reauctioned 155 C, D, E, and F Block licenses;
there were 113 small business winning bidders.\30\ On January 26, 2001,
the Commission completed the auction of 422 C and F PCS licenses in
Auction 35.\31\ 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.
---------------------------------------------------------------------------

\26\ 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 paras. 57-60 (1996); see also 47 CFR 24.720(b).
\27\ 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
para. 60.
\28\ 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.
\29\ FCC News, ``Broadband PCS, D, E and F Block Auction
Closes,'' No. 71744 (rel. January 14, 1997).
\30\ See ``C, D, E, and F Block Broadband PCS Auction Closes,''
public notice, 14 FCC Rcd 6688 (WTB 1999).
\31\ See ``C and F Block Broadband PCS Auction Closes; Winning
Bidders Announced,'' public notice, 16 FCC Rcd 2339 (2001).
---------------------------------------------------------------------------

20. Narrowband Personal Communications Service. 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.\32\ Through these
auctions, the Commission awarded a total of forty-one licenses, 11 of
which were obtained by four small businesses.\33\ 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.\34\ 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.\35\ 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.\36\ The SBA
has approved these small business size standards.\37\ A third auction
commenced on October 3, 2001 and closed on October 16, 2001. Here, five
bidders won 317 (MTA and nationwide) licenses.\38\ Three of these
claimed status as a small or very small entity and won 311 licenses.
---------------------------------------------------------------------------

\32\ 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 para. 46 (1994).
\33\ 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).
\34\ 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 para. 40 (2000).
\35\ Id.
\36\ Id.
\37\ 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.
\38\ See ``Narrowband PCS Auction Closes,'' public notice, 16
FCC Rcd 18663 (WTB 2001).
---------------------------------------------------------------------------

21. Specialized Mobile Radio. The Commission awards ``small
entity'' bidding credits in auctions for Specialized Mobile Radio (SMR)
geographic area licenses in the 800 MHz and 900 MHz bands to firms that
had revenues of no more than $15 million in each of the three previous
calendar years.\39\ The Commission awards ``very small entity'' bidding
credits to firms that had revenues of no more than $3 million in each
of the three previous calendar years.\40\ The SBA has approved these
small business size standards for the 900 MHz Service.\41\ The
Commission has held auctions for geographic area licenses in the 800
MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5,
1995, and closed on April 15, 1996. Sixty bidders claiming that they
qualified as small businesses under the $15 million size standard won
263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR
auction for the upper 200 channels began on October 28, 1997, and was
completed on December 8, 1997. Ten bidders claiming that they qualified
as small businesses under the $15 million size standard won 38
geographic area licenses for the upper 200 channels in the 800 MHz SMR
band.\42\ A second auction for the 800 MHz band was held on January 10,
2002 and closed on January 17, 2002 and included 23 BEA licenses. One
bidder claiming small business status won five licenses.\43\
---------------------------------------------------------------------------

\39\ 47 CFR 90.814(b)(1).
\40\ Id.
\41\ See Letter to Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
August 10, 1999.
\42\ See ``Correction to public notice DA 96-586 `FCC Announces
Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz
SMR in Major Trading Areas,' '' public notice, 18 FCC Rcd 18367 (WTB
1996).
\43\ See ``Multi-Radio Service Auction Closes,'' public notice,
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------

22. The auction of the 1,050 800 MHz SMR geographic area licenses
for the

[[Page 50089]]

General Category channels began on August 16, 2000, and was completed
on September 1, 2000. Eleven bidders won 108 geographic area licenses
for the General Category channels in the 800 MHz SMR band qualified as
small businesses under the $15 million size standard. In an auction
completed on December 5, 2000, a total of 2,800 Economic Area licenses
in the lower 80 channels of the 800 MHz SMR service were sold. Of the
22 winning bidders, 19 claimed ``small business'' status and won 129
licenses. Thus, combining all three auctions, 40 winning bidders for
geographic licenses in the 800 MHz SMR band claimed status as small
business.
23. In addition, there are numerous incumbent site-by-site SMR
licensees and licensees with extended implementation authorizations in
the 800 and 900 MHz bands. The Commission does not know how many firms
provide 800 MHz or 900 MHz geographic area SMR pursuant to extended
implementation authorizations, nor how many of these providers have
annual revenues of no more than $3 million or $15 million (the special
small business size standards), or have no more than 1,500 employees
(the generic SBA standard for wireless entities, discussed supra). One
firm has over $15 million in revenues. The Commission assumes, for
purposes of this analysis, that all of the remaining existing extended
implementation authorizations are held by small entities.
24. Advanced Wireless Services. 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.\44\ 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.
---------------------------------------------------------------------------

\44\ 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).
---------------------------------------------------------------------------

25. Rural Radiotelephone Service. The Commission uses the SBA small
business size standard applicable to cellular and other wireless
telecommunication companies, i.e., an entity employing no more than
1,500 persons.\45\ There are approximately 1,000 licensees in the Rural
Radiotelephone Service, and the Commission estimates that there are
1,000 or fewer small entity licensees in the Rural Radiotelephone
Service that may be affected by the rules and policies adopted herein.
---------------------------------------------------------------------------

\45\ 13 CFR 121.201, NAICS code 517212.
---------------------------------------------------------------------------

26. Wireless Communications Services. 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.\46\ The SBA has approved these definitions.\47\
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.
---------------------------------------------------------------------------

\46\ Amendment of the Commission's Rules to Establish Part 27,
the Wireless Communications Service (WCS), Report and Order, 12 FCC
Rcd 10785, 10879 para. 194 (1997).
\47\ 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.
---------------------------------------------------------------------------

27. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II licenses. Phase I licensing was conducted
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized
to operate in the 220 MHz Band. The Commission has not developed a
definition of small entities specifically applicable to such incumbent
220 MHz Phase I licensees. To estimate the number of such licensees
that are small businesses, the Commission applies the small business
size standard under the SBA rules applicable to ``Cellular and Other
Wireless Telecommunications'' companies. This category provides that a
small business is a wireless company employing no more than 1,500
persons.\48\ For the census category of ``Cellular and Other Wireless
Telecommunications,'' Census Bureau data for 2002 show that there were
1,397 firms in this category that operated for the entire year.\49\ Of
this total, 1,378 firms had employment of 999 or fewer employees, and
19 firms had employment of 1,000 employees or more.\50\ Thus, under
this category and size standard, the majority of firms can be
considered small.
---------------------------------------------------------------------------

\48\ 13 CFR 121.201, NAICS code 517212.
\49\ 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).
\50\ 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.''
---------------------------------------------------------------------------

28. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service
has both Phase I and Phase II licenses. The Phase II 220 MHz service is
subject to spectrum auctions. In the 220 MHz Third Report and Order,
the Commission adopted a small business size standard for defining
``small'' and ``very small'' businesses for purposes of determining
their eligibility for special provisions such as bidding credits and
installment payments.\51\ This small business standard indicates that 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.\52\ A ``very small business'' is
defined as an entity that, together with its affiliates and controlling
principals, has average gross revenues that do not exceed $3 million
for the preceding three years.\53\ The SBA has approved these small
size standards.\54\ Auctions of Phase II licenses commenced on
September 15, 1998, and closed on October 22, 1998.\55\ In the first
auction, 908 licenses were auctioned in three different-sized
geographic areas: three nationwide licenses, 30 Regional Economic Area
Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908
licenses auctioned, 693 were sold.\56\ Thirty-nine small businesses won
373 licenses in the first 220 MHz auction. A second auction included
225 licenses:

[[Page 50090]]

216 EA licenses and 9 EAG licenses. Fourteen companies claiming small
business status won 158 licenses.\57\ A third auction included four
licenses: 2 BEA licenses and 2 EAG licenses in the 220 MHz Service. No
small or very small business won any of these licenses.\58\
---------------------------------------------------------------------------

\51\ 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, Third Report and Order, 12 FCC Rcd 10943, 11068-70 paras.
291-295 (1997).
\52\ Id. at 11068 para. 291.
\53\ Id.
\54\ See Letter to Daniel Phythyon, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
January 6, 1998.
\55\ See generally ``220 MHz Service Auction Closes,'' public
notice, 14 FCC Rcd 605 (WTB 1998).
\56\ See ``FCC Announces It is Prepared to Grant 654 Phase II
220 MHz Licenses After Final Payment is Made,'' public notice, 14
FCC Rcd 1085 (WTB 1999).
\57\ See ``Phase II 220 MHz Service Spectrum Auction Closes,''
public notice, 14 FCC Rcd 11218 (WTB 1999).
\58\ See ``Multi-Radio Service Auction Closes,'' public notice,
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------

29. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band 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.\59\ 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.\60\ 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.\61\ SBA approval of these definitions is not required.\62\
An auction of 52 Major Economic Area (MEA) licenses commenced on
September 6, 2000, and closed on September 21, 2000.\63\ 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 700 MHz Guard Band 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.\64\
---------------------------------------------------------------------------

\59\ 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). Service rules were amended in 2007, but no changes
were made to small business size categories. See Service Rules for
the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150,
Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-
Compatible Telephones, WT Docket No. 01-309, Biennial Regulatory
Review--Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
Harmonize Various Rules Affecting Wireless Radio Services, WT Docket
03-264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band
Licenses and Revisions to Part 27 of the Commission's Rules, WT
Docket No. 06-169, Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band, PS Docket
No. 06-229, Development of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year 2010, WT Docket No. 96-
86, Report and Order and Further Notice of Proposed Rulemaking, 22
FCC Rcd 8064 (2007).
\60\ Id. at 5343 para. 108.
\61\ Id.
\62\ Id. at 5343 para. 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).
\63\ See ``700 MHz Guard Bands Auction Closes: Winning Bidders
Announced,'' public notice, 15 FCC Rcd 18026 (2000).
\64\ See ``700 MHz Guard Bands Auctions Closes: Winning Bidders
Announced,'' public notice, 16 FCC Rcd 4590 (WTB 2001).
---------------------------------------------------------------------------

30. Upper 700 MHz Band Licenses. The Commission released a Report
and Order authorizing service in the Upper 700 MHz band.\65\ An auction
for these licenses, previously scheduled for January 13, 2003, was
postponed.\66\
---------------------------------------------------------------------------

\65\ Service Rules for the 746-764 and 776-794 MHz Bands, and
Revisions to Part 27 of the Commission's Rules, Second Memorandum
Opinion and Order, 16 FCC Rcd 1239 (2001). Service rules were
amended in 2007, but no changes were made to small business size
categories. See Service Rules for the 698-746, 747-762 and 777-792
MHz Bands, WT Docket No. 06-150, Revision of the Commission's Rules
to Ensure Compatibility with Enhanced 911 Emergency Calling Systems,
CC Docket No. 94-102, Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules Affecting Wireless Radio
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band,
PS Docket No. 06-229, Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local Public
Safety Communications Requirements Through the Year 2010, WT Docket
No. 96-86, Report and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd 8064 (2007).
\66\ See ``Auction of Licenses for 747-762 and 777-792 MHz Bands
(Auction No. 31) Is Rescheduled,'' public notice, 16 FCC Rcd 13079
(WTB 2003).
---------------------------------------------------------------------------

31. Lower 700 MHz Band Licenses. The Commission adopted criteria
for defining three groups of small businesses for purposes of
determining their eligibility for special provisions such as bidding
credits.\67\ The Commission has defined a small business as an entity
that, together with its affiliates and controlling principals, has
average gross revenues not exceeding $40 million for the preceding
three years.\68\ A very small business is defined as 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.\69\ Additionally, the Lower 700 MHz Band has a third
category of small business status that may be claimed for Metropolitan/
Rural Service Area (MSA/RSA) licenses. The third category is
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.\70\ The SBA
has approved these small size standards.\71\ An auction of 740 licenses
(one license in each of the 734 MSAs/RSAs and one license in each of
the six Economic Area Groupings (EAGs)) 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.\72\ A second
auction commenced on May 28, 2003, and closed on June 13, 2003, and
included 256 licenses: 5 EAG licenses and 476 CMA licenses.\73\
Seventeen winning bidders claimed small or very small business status
and won sixty licenses, and nine winning bidders claimed entrepreneur
status and won 154 licenses.\74\
---------------------------------------------------------------------------

\67\ See Reallocation and Service Rules for the 698-746 MHz
Spectrum Band (Television Channels 52-59), Report and Order, 17 FCC
Rcd 1022 (2002).
\68\ Id. at 1087-88 para. 172.
\69\ Id.
\70\ Id. at 1088 para. 173.
\71\ See Letter to Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
August 10, 1999.
\72\ See ``Lower 700 MHz Band Auction Closes,'' public notice,
17 FCC Rcd 17272 (WTB 2002).
\73\ See ``Lower 700 MHz Band Auction Closes,'' public notice,
18 FCC Rcd 11873 (WTB 2003).
\74\ Id.
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32. Common Carrier Paging. The SBA has developed a small business
size standard for wireless firms within the broad economic census
category of ``Paging.'' \75\ Under this category, the SBA deems a
business to be small if it has 1,500 or fewer employees. For the census
category of Paging, Census Bureau data for 2002 show that there were
807 firms in this category that operated for the entire year.\76\ Of
this total, 804 firms had employment of 999 or fewer employees, and
three firms had employment of 1,000 employees or more.\77\ Thus, under
this category, the majority of firms can be considered small. In the
Paging Third Report and Order, the Commission developed a small
business size standard for ``small businesses'' and ``very small

[[Page 50091]]

businesses'' for purposes of determining their eligibility for special
provisions such as bidding credits and installment payments.\78\ 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.\79\ The SBA has approved
these small business size standards.\80\ An auction of Metropolitan
Economic Area licenses commenced on February 24, 2000, and closed on
March 2, 2000.\81\ 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.\82\ Of those, the
Commission estimates that 360 are small, under the SBA-approved small
business size standard.\83\
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\75\ 13 CFR 121.201, NAICS code 517211.
\76\ 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).
\77\ 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.''
\78\ 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, paras.
291-295, 62 FR 16004 (Apr. 3, 1997).
\79\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, FCC, from A.
Alvarez, Administrator, SBA (Dec. 2, 1998) (SBA Dec. 2, 1998
Letter).
\80\ 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, paras. 98-107 (1999).
\81\ Id. at 10085, para. 98.
\82\ 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.
\83\ Id.
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33. Wireless Communications Services. 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.\84\ 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.\85\ 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.
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\84\ 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.
\85\ SBA Dec. 2, 1998 Letter.
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34. Wireless Telephony. Wireless telephony includes cellular,
personal communications services (PCS), and specialized mobile radio
(SMR) telephony carriers. As noted earlier, the SBA has developed a
small business size standard for ``Cellular and Other Wireless
Telecommunications'' services.\86\ Under that SBA small business size
standard, a business is small if it has 1,500 or fewer employees.\87\
According to Commission data, 432 carriers reported that they were
engaged in the provision of wireless telephony.\88\ The Commission has
estimated that 221 of these are small under the SBA small business size
standard.
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\86\ 13 CFR 121.201, NAICS code 517212.
\87\ Id.
\88\ 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.
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35. Air-Ground Radiotelephone Service. The Commission has not
adopted a small business size standard specific to the Air-Ground
Radiotelephone Service.\89\ The Commission will use SBA's small
business size standard applicable to ``Cellular and Other Wireless
Telecommunications,'' i.e., an entity employing no more than 1,500
persons.\90\ There are approximately 100 licensees in the Air-Ground
Radiotelephone Service, and the Commission estimates that almost all of
them qualify as small under the SBA small business size standard.
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\89\ The service is defined in section 22.99 of the Commission's
Rules, 47 CFR 22.99.
\90\ 13 CFR 121.201, NAICS code 517212.
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36. Aviation and Marine Radio Services. Small businesses in the
aviation and marine radio services use a very high frequency (VHF)
marine or aircraft radio and, as appropriate, an emergency position-
indicating radio beacon (and/or radar) or an emergency locator
transmitter. The Commission has not developed a small business size
standard specifically applicable to these small businesses. For
purposes of this analysis, the Commission uses the SBA small business
size standard for the category ``Cellular and Other
Telecommunications,'' which is 1,500 or fewer employees.\91\ Most
applicants for recreational licenses are individuals. Approximately
581,000 ship station licensees and 131,000 aircraft station licensees
operate domestically and are not subject to the radio carriage
requirements of any statute or treaty. For purposes of evaluation in
this analysis, the Commission estimates that there are up to
approximately 712,000 licensees that are small businesses (or
individuals) under the SBA standard. In addition, between December 3,
1998 and December 14, 1998, the Commission held an auction of 42 VHF
Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and
161.775-162.0125 MHz (coast transmit) bands. For purposes of the
auction, the Commission defined a ``small'' business as an entity that,
together with controlling interests and affiliates, has average gross
revenues for the preceding three years not to exceed $15 million
dollars. In addition, a ``very small'' business is one that, together
with controlling interests and affiliates, has average gross revenues
for the preceding three years not to exceed $3 million dollars.\92\
There are approximately 10,672 licensees in the Marine Coast Service,
and the Commission estimates that almost all of them qualify as
``small'' businesses under the above special small business size
standards.
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\91\ 13 CFR 121.201, NAICS code 517212.
\92\ Amendment of the Commission's Rules Concerning Maritime
Communications, PR Docket No. 92-257, Third Report and Order and
Memorandum Opinion and Order, 13 FCC Rcd 19853 (1998).
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37. Fixed Microwave Services. Fixed microwave services include
common carrier,\93\ private operational-fixed,\94\ and broadcast
auxiliary radio services.\95\ At present, there are approximately
22,015 common carrier fixed licensees and 61,670 private operational-
fixed licensees and broadcast auxiliary radio licensees in the
microwave services. The Commission has not created a size standard for
a small business

[[Page 50092]]

specifically with respect to fixed microwave services. For purposes of
this analysis, the Commission uses the SBA small business size standard
for the category ``Cellular and Other Telecommunications,'' which is
1,500 or fewer employees.\96\ The Commission does not have data
specifying the number of these licensees that have more than 1,500
employees, and thus is unable at this time to estimate with greater
precision the number of fixed microwave service licensees that would
qualify as small business concerns under the SBA's small business size
standard. Consequently, the Commission estimates that there are up to
22,015 common carrier fixed licensees and up to 61,670 private
operational-fixed licensees and broadcast auxiliary radio licensees in
the microwave services that may be small and may be affected by the
rules and policies adopted herein. The Commission noted, however, that
the common carrier microwave fixed licensee category includes some
large entities.
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\93\ See 47 CFR 101 et seq. (formerly, Part 21 of the
Commission's Rules) for common carrier fixed microwave services
(except Multipoint Distribution Service).
\94\ Persons eligible under parts 80 and 90 of the Commission's
Rules can use Private Operational-Fixed Microwave services. See 47
CFR Parts 80 and 90. Stations in this service are called
operational-fixed to distinguish them from common carrier and public
fixed stations. Only the licensee may use the operational-fixed
station, and only for communications related to the licensee's
commercial, industrial, or safety operations.
\95\ Auxiliary Microwave Service is governed by Part 74 of Title
47 of the Commission's rules. See 47 CFR 74. This service is
available to licensees of broadcast stations and to broadcast and
cable network entities. Broadcast auxiliary microwave stations are
used for relaying broadcast television signals from the studio to
the transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes mobile television
pickups, which relay signals from a remote location back to the
studio.
\96\ 13 CFR 121.201, NAICS code 517212.
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38. Offshore Radiotelephone Service. This service operates on
several UHF television broadcast channels that are not used for
television broadcasting in the coastal areas of states bordering the
Gulf of Mexico.\97\ There are presently approximately 55 licensees in
this service. The Commission is unable to estimate at this time the
number of licensees that would qualify as small under the SBA's small
business size standard for ``Cellular and Other Wireless
Telecommunications'' services.\98\ Under that SBA small business size
standard, a business is small if it has 1,500 or fewer employees.\99\
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\97\ This service is governed by Subpart I of Part 22 of the
Commission's rules. See 47 CFR 22.1001 through 22.1037.
\98\ 13 CFR 121.201, NAICS code 517212.
\99\ Id.
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39. 39 GHz Service. The Commission created a special small business
size standard for 39 GHz licenses--an entity that has average gross
revenues of $40 million or less in the three previous calendar
years.\100\ An additional size standard for ``very small business'' is:
An entity that, together with affiliates, has average gross revenues of
not more than $15 million for the preceding three calendar years.\101\
The SBA has approved these small business size standards.\102\ The
auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed
on May 8, 2000. The 18 bidders who claimed small business status won
849 licenses. Consequently, the Commission estimates that 18 or fewer
39 GHz licensees are small entities that may be affected by the rules
and polices adopted herein.
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\100\ See Amendment of the Commission's Rules Regarding the
37.0-38.6 GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, Report
and Order, 63 FR 6079 (Feb. 6, 1998).
\101\ Id.
\102\ See Letter to Kathleen O'Brien Ham, Chief, Auctions and
Industry Analysis Division, Wireless Telecommunications Bureau, FCC,
from Aida Alvarez, Administrator, SBA (Feb. 4, 1998).
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40. Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service comprises Multichannel Multipoint Distribution
Service (MMDS) systems and Multipoint Distribution Service (MDS).\103\
MMDS systems, often referred to as ``wireless cable,'' transmit video
programming to subscribers using the microwave frequencies of MDS and
Educational Broadband Service (formerly known as Instructional
Television Fixed Service).\104\ Wireless cable systems use 2 GHz band
frequencies of the Broadband Radio Service (``BRS''), formerly
Multipoint Distribution Service (``MDS''),\105\ and the Educational
Broadband Service (``EBS''), formerly Instructional Television Fixed
Service (``ITFS''),\106\ to transmit video programming and provide
broadband services to residential subscribers.\107\ These services were
originally designed for the delivery of multichannel video programming,
similar to that of traditional cable systems, but over the past several
years licensees have focused their operations instead on providing two-
way high-speed Internet access services.\108\ We estimate that the
number of wireless cable subscribers is approximately 100,000, as of
March 2005. Local Multipoint Distribution Service (``LMDS'') is a fixed
broadband point-to-multipoint microwave service that provides for two-
way video telecommunications.\109\ As described below, the SBA small
business size standard for the broad census category of Cable and Other
Program Distribution, which consists of such entities generating $13.5

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