Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, 22338-22352 [2010-9831]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 81 (Wednesday, April 28, 2010)]
[Proposed Rules]
[Pages 22338-22352]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9831]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 20

[WT Docket No. 05-265; FCC 10-59]


Reexamination of Roaming Obligations of Commercial Mobile Radio 
Service Providers

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission addresses in this Second Further Notice of 
Proposed Rulemaking (Second FNPRM) whether to extend roaming 
obligations to data services that are provided without interconnection 
to the public switched network--including mobile broadband services.

DATES: Interested parties may file comments on or before June 14, 2010, 
and reply comments on or before July 12, 2010.

ADDRESSES: 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. 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://fjallfoss.fcc.gov/ecfs2/or the Federal eRulemaking Portal: https://www.regulations.gov.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours 
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

[[Page 22339]]

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 must be addressed to 445 12th Street, SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

FOR FURTHER INFORMATION CONTACT: For further information concerning 
this proceeding, please contact Peter Trachtenberg, Spectrum and 
Competition Policy Division at 202-418-7369, Christina Clearwater, 
Spectrum and Competition Policy Division at 202-418-1893 or Nese 
Guendelsberger, Spectrum and Competition Policy Division at 202-418-
0634.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's rules 
noted in the Order on Reconsideration and Second Further Notice of 
Proposed Rulemaking in WT Docket No. 05-265; FCC 10-59, adopted April 
21, 2010, and released on April 21, 2010. This summary should be read 
with its companion document, the Order on Reconsideration summary 
published elsewhere in this issue of the Federal Register. The full 
text of the Order on Reconsideration and Second Further Notice of 
Proposed Rulemaking is available for public inspection and copying 
during business hours in the FCC Reference Information Center, Portals 
II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. It also 
may be purchased from the Commission's duplicating contractor at 
Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; 
the contractor's Web site, https://www.bcpiweb.com; or by calling (800) 
378-3160, facsimile (202) 488-5563, or e-mail FCC@BCPIWEB.com. Copies 
of the public notice also may be obtained via the Commission's 
Electronic Comment Filing System (ECFS) by entering the docket number, 
WT Docket No. 05-265. Additionally, the complete item is available on 
the Federal Communications Commission's Web site at https://www.fcc.gov.

Synopsis of the Second Further Notice of Proposed Rulemaking Section of 
the Order on Reconsideration and Second Further Notice of Proposed 
Rulemaking

I. Introduction

    1. In this Second FNPRM, the Commission seeks additional comment on 
whether to extend automatic roaming obligations to certain mobile data 
services--specifically, mobile services, including mobile broadband 
Internet access, that are provided without interconnection to the 
public switched telephone network. The Commission is seeking comment as 
well on whether any such obligations should apply only to service 
providers that are also CMRS carriers or more broadly to facility-based 
mobile data service providers whether or not they also provide CMRS. 
The Commission's underlying policy goals remain the same as for mobile 
voice service roaming--to facilitate the provision of services in a 
manner that provides the greatest benefit to consumers. In particular, 
the Commission seeks to have service provided by new entrants in 
competition with established incumbents; to ensure that consumers have 
access to seamless coverage nationwide; and to provide incentives for 
both new entrants and incumbent service providers to invest and 
innovate by using available spectrum and constructing wireless network 
facilities on a widespread basis. The Commission invites parties to 
include any new information that may be relevant to the Commission's 
consideration of what action, if any, may be appropriate in this 
proceeding.
    2. In 2007, the Commission sought comment in a Further Notice 
(FNPRM) on whether to impose data roaming obligations on CMRS carriers. 
The Commission recognizes the need to resolve this issue in an 
expeditious manner. Broadband deployment is a key priority for the 
Commission, and the deployment of mobile data networks will be 
essential to achieve the goal of making broadband connectivity 
available everywhere in the United States. The Commission also seeks to 
foster competition and the development of mobile data services with 
wide, seamless coverage. Wide coverage will enhance the unique social 
and economic benefits that a mobile service provides by enabling 
consumers to access information wherever they are, while competition 
will help to promote investment and innovation and protect consumer 
interests.
    3. Many providers have argued that ensuring the availability of 
roaming arrangements for mobile broadband will be critical to achieving 
these goals. The Commission also notes that roaming services have 
helped to promote competition and seamless nationwide coverage in the 
mobile telephony market. The Commission notes mobile broadband 
networks, particularly ``fourth-generation'' networks, are still at an 
early stage of deployment, similar to the early years of the mobile 
telephony market. The Commission therefore expects that the 
availability of data roaming services will likely play a major role in 
the future development of the broadband data market. Further, resolving 
the issue will provide regulatory certainty, which will itself help to 
establish an environment conducive to network deployment and 
investment.
    4. Nevertheless, the Commission concludes that it is important to 
refresh and further develop the record before moving to adopt specific 
rules governing the availability of data roaming services. Mobile 
broadband is at a critical stage in its development. The mobile 
broadband ecosystem is rapidly evolving and providers are seeing a 
rapid increase in mobile broadband data use, but the advanced mobile 
broadband services market is still nascent. The Commission therefore 
seeks additional information in order to determine how best to ensure 
the rapid, ubiquitous and competitive development and deployment of 
broadband services. Given the impact the Commission's policies can have 
at this formative stage, the Commission needs to choose the right 
policies to further its goals for mobile broadband, which like its 
mobile services goals generally, include fostering innovation, 
investment and network deployment, promoting competition and the 
availability of seamless nationwide access, and empowering and 
protecting consumers.
    5. Since the 2007 FNPRM, there have been numerous developments in 
the industry and advancements in technology that are likely to be 
relevant to the Commission's analysis, and which have affected at least 
one nationwide provider's positions in this proceeding. To help us 
determine the best policies for mobile broadband, the Commission wants 
to ensure that such information is fully incorporated into its decision 
making on this important issue. In addition, in light of the limited 
extent of the FNPRM, the Commission finds that asking a number of 
specific questions will ensure that its resolution of this issue is 
based on a more fully developed record. Although the mobile broadband 
market is similar to the voice market in key respects, it appears to be

[[Page 22340]]

different in others, and it is important that the Commission 
understands whether any of those differences would justify a different 
regulatory approach to achieve its underlying policy goals than the 
Commission is taking today with regard to interconnected voice. In 
addition, as the FNPRM was limited to seeking comment on the 
obligations of CMRS carriers that also provide non-CMRS data services, 
the Commission takes this opportunity to seek comment on whether to 
impose similar obligations on other mobile data service providers, 
whether they offer CMRS or not. For these reasons, the Commission seeks 
further comment on whether it would be in the public interest to extend 
roaming obligations to non-interconnected services including broadband 
data.

A. Discussion

    6. The goals that informed the Commission's determinations 
regarding the scope of roaming obligations for interconnected voice 
also guide its consideration of obligations on non-interconnected data 
services. The Commission seeks to foster investment and innovation in 
the use of spectrum and the development and deployment of data network 
facilities and services, competition for mobile broadband business by 
multiple providers, and consumer benefit from the availability of 
advanced and innovative mobile services with seamless nationwide 
coverage. The Commission notes that the growth of the mobile broadband 
data market is at a critical early stage. Many nationwide and non-
nationwide providers have obtained licenses, including AWS and 700 MHz 
spectrum licenses among others, that the Commission anticipates will be 
used to provide new and advanced data services to American consumers. 
Numerous commenters in this proceeding argue that the viability of data 
network deployments and the ability of consumers to access such 
services seamlessly will depend on the ability of providers to obtain 
data roaming arrangements.
    7. The importance of the issue underscores the need for a more 
fully developed record to provide the foundation for fact-based, data-
driven decision making, especially in light of the brevity of the 2007 
FNPRM. In the two years since the 2007 FNPRM, the wireless broadband 
industry has experienced a rapid evolution, with significant economic, 
technological, and regulatory developments, including developments in 
network and device technologies, spectrum use and availability, market 
participants, network deployments, and consumer demand and usage 
patterns. Such developments include market transactions involving 
significant existing CMRS providers, the Commission's auction of 
significant additional spectrum in the 700 MHz Band for commercial 
broadband use, announcements from numerous providers of new mobile 
broadband network deployments, increasing consumer use of smartphones, 
and, partly as a result, a dramatic increase in consumers' use of 
wireless data services. Given all these changes and developments, the 
Commission desires an up-to-date understanding of, among other things, 
the shape of the business segment, the network services and 
technologies that will be deployed, the importance of roaming to entry 
and commercial viability, the availability of roaming arrangements 
absent any regulatory requirement, the technical arrangements needed to 
support data roaming, and the capacity demands to be expected from data 
roaming traffic, including variability.
    8. In addition, the Commission notes that the 2007 FNPRM was 
limited in scope to whether the Commission should impose data roaming 
obligations on CMRS carriers that also provide non-CMRS data services. 
As the market for mobile broadband services has developed, however, the 
Commission now anticipates that mobile broadband services will 
increasingly be provided by entities that do not offer CMRS but that 
may nevertheless compete for mobile data service subscribers with 
companies that offer both mobile broadband and CMRS carriers. 
Therefore, the Commission is taking this opportunity to seek comment on 
whether automatic roaming obligations for mobile data services should 
apply to all providers of such services.
    9. Parties should include any new information that may be relevant 
to determining what action the Commission should take in this 
proceeding. Further, parties should comment on how a roaming rule for 
data services, if any, should compare to the Commission's rule for 
voice services and explain with specificity what justifies similar or 
different treatment. The Commission notes that parties submitted 
several proposals in response to the 2007 FNPRM.
     Some proposed that the Commission should not impose any 
rule.
     Others argued for a rule for data roaming that largely 
mirrors the voice roaming rule adopted in the 2007 Report and Order, 
subject only to restrictions in cases of technical or economic 
infeasibility.
     Others proposed requiring data roaming but including 
special conditions on data roaming comparable to those that the 
Commission imposed on requests for roaming for push-to-talk and SMS, 
including a requirement that the requesting provider offer the services 
on its own network for which it is requesting a roaming arrangement.
     Some suggested that data roaming obligations should only 
require a host carrier to provide roaming subscribers with conduit 
access to the requesting carrier's network, not access to the host's 
own proprietary information services.
     In addition, some commenters proposed specific measures to 
address concerns regarding the potential for data roaming to cause 
network capacity exhaustion.

The Commission seeks comment on these specific proposals or any other 
proposals for addressing data roaming obligations, and the Commission 
ask all parties to be specific regarding the rule that the Commission 
should adopt, if any, regarding data roaming. Commenters desiring 
confidential treatment of their submissions should request that their 
submission, or specific parts thereof, be withheld from public 
inspection pursuant to the Commission's rules.
    10. Legal Authority. The Commission has exercised its discretion to 
classify some non-interconnected data services, e.g., mobile wireless 
broadband Internet access, as information services, thus removing them 
from the category of common carrier services under Title II. In the 
2007 Report and Order, the Commission found that automatic roaming is a 
common carrier obligation and does not extend to information services 
or to other wireless services that are not CMRS. Accordingly, in the 
2007 FNPRM, the Commission sought comment on whether automatic roaming 
obligations could be imposed on such services pursuant to our authority 
under Title I and/or Title III. The Commission further addresses the 
extent of its authority below, and the Commission seeks comment on its 
analysis.
    11. Although the Commission determined three years ago that 
wireless broadband Internet access is an information service and not a 
CMRS service, it has not made any classification determinations 
regarding any service or application provided over these Internet 
access connections. Further, the Commission has not determined whether 
the provision of automatic roaming should be

[[Page 22341]]

considered a telecommunications service, and thus subject to Title II, 
even if the subscriber is using the roaming arrangement to access an 
information service. The Commission believes that, regardless of 
whether the services a subscriber would access through roaming 
arrangements are telecommunications services or information services, 
the Commission has statutory authority to require automatic roaming for 
them. If these services are telecommunications services, they are 
subject to roaming obligations pursuant to the Commission's authority 
under Title II and Title III. If they are information services, the 
Commission has the authority to promulgate roaming requirements under 
Title III and other provisions. The Commission seeks comment on this 
analysis, including the significance, if any, of the recent decision of 
the United States Court of Appeals for the District of Columbia Circuit 
in Comcast Corporation. v. FCC.
    12. The Commission turns first to its authority under Title III. 
Several provisions of that title provide the Commission authority to 
establish license conditions in the public interest. For example, 
Section 301 provides the Commission with authority to regulate ``radio 
communications'' and ``transmission of energy by radio.'' Under Section 
303, the Commission has the authority to establish operational 
obligations for licensees that further the goals and requirements of 
the Act if the obligations are in the ``public convenience, interest, 
or necessity'' and not inconsistent with other provisions of law. 
Section 303 also authorizes the Commission, subject to what the 
``public interest, convenience, or necessity requires,'' to 
``[p]rescribe the nature of the service to be rendered by each class of 
licensed stations and each station within any class.'' Section 307(a) 
likewise authorizes the issuance of licenses ``if public convenience, 
interest, or necessity will be served thereby.'' Section 316 provides a 
similar test for new conditions on existing licenses, authorizing such 
modifications if ``in the judgment of the Commission such action will 
promote the public interest, convenience, and necessity.'' Application 
of these provisions is not affected by whether the service using the 
spectrum is a telecommunications service or information service under 
the Act. Thus, in the Wireless Broadband Internet Access Classification 
Order, the Commission found that wireless broadband Internet access, 
although an information service, continues to be subject to obligations 
promulgated pursuant to Title III. The Commission also relied on 
authority under Section 303(r) to impose ``open platform'' obligations 
on Upper 700 MHz C Block licensees, without regard to whether such 
licensees were providing telecommunications or information services. 
Accordingly, the Commission believes that the provisions discussed 
above provide authority to establish roaming obligations over both 
telecommunications and information services, if such obligations are 
found to be in the public interest and, in the case of Section 303(r), 
the obligations would also further the goals and requirements of the 
Act.
    13. As discussed above, reasonable roaming obligations can serve 
the public interest by promoting competition, investment, and new entry 
while facilitating consumer access to ubiquitous service. The 
Commission also anticipates that promoting competition, investment, and 
new entry in the broadband services market and protecting consumer 
access to nationwide ubiquitous service, would serve several specific 
goals and requirements of the Act consistent with section 303(r), which 
gives the Commission authority to impose requirements ``as may be 
necessary to carry out the provisions of this Act.'' These obligations 
may help to meet the requirement under Section 309(j)(3) that, ``in 
specifying eligibility and other characteristics of * * * licenses [to 
be issued by competitive bidding] * * *, and in designing the 
methodologies for use under this subsection, the Commission shall 
include safeguards to protect the public interest in the use of the 
spectrum and shall seek to promote the purposes specified in section 1 
of this Act'' and certain enumerated objectives. Regarding the purposes 
in section 1 of the Act, to the extent that they would promote 
competition and the availability of seamless nationwide services, 
automatic roaming obligations for data may further the statutory goal 
of making available ``to all the people of the United States * * * a 
rapid, efficient, Nation-wide, and world-wide wire and radio 
communication service with adequate facilities at reasonable charges * 
* * for the purpose of promoting safety of life and property through 
the use of wire and radio communications.'' Automatic data roaming 
additionally may advance enumerated objectives within Section 
309(j)(3), including ``the development and rapid deployment of new 
technologies, products, and services for the benefit of the public * * 
* without administrative or judicial delays; * * * [and] (D) efficient 
and intensive use of the electromagnetic spectrum * * * .'' To the 
extent that roaming requirements are found to encourage more efficient 
and intensive use of spectrum in rural areas, they would also support 
the direction of Section 303(g) to ``[s]tudy new uses for radio, 
provide for experimental uses of frequencies, and generally encourage 
the larger and more effective use of radio in the public interest * * 
*.'' These obligations may also further the goal under Section 1302 of 
encouraging new deployment of advanced services to all Americans by 
promoting competition and by removing barriers to infrastructure 
investment, including the barriers to new entrants resulting from 
incumbents' ``head start'' advantages. Accordingly, the Commission 
thinks that, if roaming obligations on non-interconnected services are 
ultimately found to be in the public interest, the Commission has 
authority under the provisions of Title III discussed above, among 
other provisions, to establish such obligations. The Commission seeks 
comment on this analysis.
    14. Next, the Commission seeks comment on arguments in the record 
that automatic roaming for non-interconnected services is itself a 
telecommunications service, and therefore is also subject to our 
authority under Title II. ``Telecommunications'' is defined in the Act 
as ``the transmission, between or among points specified by the user, 
of information of the user's choosing without change in the form or 
content of the information as sent and received.'' ``Telecommunications 
service'' is defined as ``the offering of telecommunications for a fee 
directly to the public, or to such classes of users as to be 
effectively available directly to the public, regardless of the 
facilities used.'' SouthernLINC argues that automatic roaming is simply 
a transmission service. It describes the function of the host provider 
as ensuring that data are transmitted without change between the 
subscriber and the subscriber's home network. Opponents argue that the 
provision of roaming access to information services can involve direct 
support of the information service by the host provider rather than 
simply transmission of the packets to the roaming subscriber's native 
network. They also argue that, even where the data are simply 
transmitted back to the native network, this will often require DNS 
lookup, which, they say, the Commission has found to be a 
``capability'' that goes beyond mere transmission. Proponents respond 
that such addressing and routing functions

[[Page 22342]]

are not sufficient to render automatic roaming an information service, 
as they do not cause a ``change in the form or content of the 
information as sent and received.'' The Commission seeks comment on 
these arguments.
    15. The Commission also seeks comment on the extent to which host 
providers that have implemented data roaming arrangements provide data 
services or applications, such as web browsing or push-to-device 
electronic mail, and how these applications are provided. Is a host 
provider's network being used only as a conduit between the roaming 
subscriber and the subscriber's home network? To the extent that a host 
provider performs functions other than data transmission, to what 
extent are these functions limited to addressing and routing functions, 
or other functions ancillary to achieving the transmission of the data 
to its destination? Do any of these functions fall within the 
management exception in the definition of ``information service''? Do 
the answers to any of these questions vary depending on the specific 
data service (e.g., e-mail) requested by subscribers of home providers, 
or on the specific network technology involved (e.g., 2G, 3G, or 4G)?
    16. Finally, the Commission turns to its authority under Title I of 
the Act. Under Title I, the Commission may exercise ancillary authority 
over a matter when it falls within the agency's general statutory grant 
of jurisdiction under Title I and the regulation is reasonably 
ancillary to the effective performance of the Commission's statutorily 
mandated responsibilities. The Commission seeks comment on its 
ancillary authority to address roaming obligations for providers of 
non-interconnected wireless services. The Commission thinks it clear 
that the Commission has subject matter jurisdiction over non-
interconnected wireless services and features, including wireless 
broadband Internet access services. As the Commission has previously 
found with regard to wireless broadband Internet access services, 
wireless non-interconnected services are covered by the Commission's 
general jurisdictional grant under sections 1 and 2(a) of the Act, 
coupled with the definition set forth in section 3(33) (``radio 
communication''). Second, because the availability of automatic roaming 
at reasonable rates and terms can help to promote facilities-based 
competition and the availability of seamless nationwide services, 
automatic roaming obligations may be reasonably ancillary to several 
provisions under the Act. The Commission seeks comment on whether these 
or other provisions of the Act support the exercise of ancillary 
authority.
    17. Some commenters argue that relying on our Title I authority to 
impose roaming obligations on services that the Commission has 
classified as information services would be inconsistent with 
Congress's intent that information services not be treated as common 
carrier services, pointing to section 153(44) of the Act. This 
provision provides that ``a telecommunications carrier shall be treated 
as a common carrier under this Act only to the extent that it is 
engaged in providing telecommunications services.'' They also argue 
that requiring automatic roaming obligations for information services 
would be inconsistent with the Commission's prior determination that 
providers of information services ``are exempt from mandatory Title II 
common carrier regulation.'' The Commission seeks comment on these 
arguments.
    18. Importance of Data Roaming. The Commission next seeks further 
comment on the importance of roaming for non-interconnected data 
services. In what ways will data roaming arrangements affect 
competitive entry and network deployment in the nascent data services 
market? For example, what is the effect on consumers in the absence of 
data roaming requirements in terms of the coverage and service they 
will receive? Will rural consumers, who may only have access to small, 
local providers, have no coverage beyond their local area?
    19. The Commission also seeks comment on what impacts the 
establishment of data roaming arrangements may have on the terms of 
retail service provided to consumers, how such impacts differ from 
those resulting from voice roaming arrangements, and how service terms 
might be affected by data roaming developments in the future and a data 
roaming mandate in particular.
    20. For those providers that have roaming arrangements with other 
providers for non-interconnected data services, to what extent do their 
data subscribers make use of such roaming arrangements, and how does 
the amount of their subscribers' roaming use compare to their home 
network use? For host providers, how does the data roaming traffic they 
support compare to their own subscribers' use, in terms of amount and 
revenues generated? The Commission also seeks comment on how 
deployment, competition, and consumer access to services will be 
affected in the mobile broadband market in the absence of data roaming 
obligations.
    21. Investment Incentives. The Commission seeks further comment on 
the impact that extending roaming requirements to wireless data 
services would have on the incentives of providers to invest in 
advanced data networks and fully use available spectrum. The record 
currently encompasses competing claims with regard to the impact that 
extending an automatic roaming obligation to non-interconnected 
services would have on investment. Proponents of a data roaming 
obligation argue that, because the availability of roaming will 
facilitate competitive entry, the amount of network investment will be 
increased. Opponents of such an obligation argue that a data roaming 
mandate will create disincentives for both smaller and larger providers 
to build out advanced networks in new areas, particularly in high cost 
areas.
    22. The Commission first notes that these arguments are similar to 
the arguments presented to the Commission with regard to automatic 
roaming for voice services, which, as discussed above, the Commission 
has addressed through adoption of an automatic roaming requirement. The 
Commission therefore asks commenters to address specifically whether 
and how the investment incentives would differ for non-interconnected 
data services. The Commission also notes that, while many commenters 
made assertions regarding the impact of roaming obligations on buildout 
incentives, no commenters provided a methodology or hard data that 
would help us to judge the overall impact of a roaming obligation on 
investment, the use of spectrum, and buildout. Such methodology or data 
would be helpful. In addition, the Commission seeks comment on whether 
it should adopt any measures or restrictions to help preserve 
investment incentives. For example, should the Commission clarify that 
a carrier that obtains automatic roaming from another carrier does not 
have a right to advertise that it offers its subscribers roaming on a 
particular host carrier's network absent a voluntary agreement of the 
host carrier? Would this help to prevent freeriding on the value of the 
host carrier's brand name recognition and service quality reputation?
    23. The Provision of Roaming for Non-Interconnected Data Services. 
The Commission also asks commenters to provide specific data that will 
help us assess the availability of roaming arrangements for various 
non-interconnected data services and the current ability of providers 
that desire

[[Page 22343]]

such arrangements to obtain them. The Commission seeks comment on the 
impact of consolidation in the CMRS market or other trends affecting 
market concentration on the current and future availability of roaming 
arrangements for non-interconnected services. For example, the 
Commission asks commenters to provide specific information regarding 
instances in which providers that have been willing to enter into 
roaming arrangements, whether for voice or data, are now refusing to do 
so. In such cases, the Commission asks commenters to specify whether 
the would-be host provider has refused ongoing roaming for any service, 
or has agreed to continue providing roaming for services previously 
supported but refused to extend the arrangement to new (e.g., non-
interconnected data) services.
    24. The Commission seeks specific information from providers that 
have received requests for data roaming regarding their policies and 
practices regarding such roaming arrangements. How many requests for 
data roaming they have received, how many of these requesting providers 
have been granted or refused roaming arrangements, and for what reasons 
or considerations were arrangements granted or refused? Will these 
policies change in the future?
    25. The Commission seeks comment on the impact of developing 
network technology on the availability of data roaming. Are providers 
seeking data roaming arrangements limited to networks using the same 
basic air interface technology as their own, and, if so, how do the 
markets for roaming services compare between the different network 
technologies? How are roaming opportunities being affected by the 
handsets being developed for broadband data? For example, to what 
extent are multi-mode or multi-band handsets being developed that might 
expand a provider's potential pool of roaming partners?
    26. Capacity and Other Technical Issues. In the FNPRM, the 
Commission sought comment on whether roaming obligations presented any 
issues regarding network capacity, integrity, or security, and on the 
effect that automatic roaming would have on the capacity of data 
networks and the ability of providers to offer full access to their own 
customers. The Commission asked whether a provider should have the 
right to limit access to its network by roamers and what parameters 
should be considered as justification for such limits. Numerous 
commenters addressed these issues in general terms, but provided few 
specifics.
    27. The Commission invites commenters to refresh the record on 
these issues and provide specific information. The Commission seeks 
comment on how concerns regarding capacity or traffic management issues 
from data roaming traffic could be addressed. Would clarifying that a 
host provider's provision of data roaming service is subject to 
reasonable network operational needs address this issue? The Commission 
asks commenters to be specific regarding the clarifications, if any, 
that the Commissions should adopt. If a commenter asserts that 
addressing this problem through traffic management is not feasible, the 
Commission asks that the commenter provide a detailed explanation 
regarding the problem. Some commenters have argued, for example, that 
it is not possible to identify the particular roaming individuals 
causing a traffic congestion problem. The Commission seeks comment on 
the specifics of this argument, and on, assuming the argument is true, 
alternative traffic management approaches that are available to address 
network congestion issues. For instance, as suggested by some 
proponents of a data roaming obligation, should such a roaming 
obligation allow network operators to identify roaming users as a group 
and apply suitable network management protocols to such a group to 
address congestion issues? The Commission also notes that it is seeking 
comment below on terms and conditions established for the provision of 
PTT and SMS roaming that may well serve to limit technical issues.
    28. The Commission also seeks specific information on the extent to 
which solutions have been developed to address these issues. The 
Commission notes, for example, that some international data roaming 
services have implemented models to provide traffic forecasting. Can 
these models help providers address the problem of uncertainty in the 
broadband capacity demands of roaming traffic? Have such models for 
data roaming been implemented domestically? Data roaming arrangements 
are already established in the United States that provide roaming on 
2.5G data networks. The Commission seeks comment on how the capacity 
demands of roaming parties and the other technical issues referenced 
above have been addressed to achieve roaming on these networks. For 
example, how have providers addressed the concerns regarding traffic 
management and capacity exhaustion?
    29. The Commission also seeks comment on what other actions might 
be appropriate to address spectrum capacity needs that may arise out of 
data roaming or to help ensure that spectrum is utilized to the extent 
possible. For example, would a rule facilitating spectrum sharing 
arrangements between a host provider and a requesting provider be 
helpful or appropriate if the host provider provides data roaming 
services to the requesting provider? In other words, would it be 
helpful to obligate the requesting provider to allow the host provider 
to use the requesting provider's spectrum in the market in which the 
host provider makes data roaming available to the requesting provider?
    30. To what extent have solutions been developed for anticipating 
and managing the broadband capacity demands of roaming traffic on 
networks using any 3G technology and on networks using any 4G 
technology? If solutions have been developed for any technology, the 
Commission seeks comment on the status of efforts to develop such 
solutions. Are there different technical, legal, commercial or policy 
considerations that the Commission should consider with respect to data 
roaming traffic on 3G and 4G networks? For instance, how do 4G 
technologies such as LTE impact the technical challenges to developing 
such roaming arrangements or otherwise affect carriers' ability to 
establish such arrangements? If there are differences, should the 
Commission treat roaming on 4G networks differently than other 
generations of mobile networks, including 3G networks? If so, for what 
period of time should the different treatment remain in place? Is 
facilitating automatic roaming traffic between different generations of 
networks, including 3G and 4G networks important and, if so, are there 
technical, legal, commercial or policy considerations of which the 
Commission should be aware? The Commission understands that a number of 
3G roaming arrangements have been made between domestic and foreign 
carriers to support international roaming at home and abroad. The 
Commission seeks comment on the extent to which carriers have 
established data roaming arrangements with foreign carriers, whether 
international roaming solutions could be applied to domestic roaming.
    31. Scope of Covered Entities. Assuming that the Commission were to 
impose a data roaming obligation, the Commission seeks comment on the 
appropriate scope and terms of the obligation (including those entities 
entitled to request data roaming), whether either the scope or the 
terms of the obligation should vary from what

[[Page 22344]]

the Commission has established for interconnected services, and in 
particular, whether the scope of entities covered by the obligations 
should include providers of mobile data services that do not also offer 
CMRS. The obligation to provide roaming for interconnected services 
applies only to providers that also offer CMRS, and only those that 
meet certain characteristics. Although mobile broadband data services 
may be provided by companies that are also CMRS carriers, such services 
may also be provided by entities that do not offer any CMRS. Therefore, 
the Commission seeks comment on whether the scope of covered entities 
should be broader than the existing scope of the automatic roaming 
rule. If so, how specifically should the Commission define the class of 
covered entities? For example, should the Commission impose the same 
obligations on all entities offering facility-based commercial mobile 
data services? Should it encompass only entities operating over 
licensed spectrum or include providers that rely on the use of 
unlicensed devices as well? Should the class of covered entities be 
limited to terrestrial networks, or also encompass satellite providers 
of mobile data services (either by satellite or ancillary terrestrial 
component)? The Commission seeks comment on how, specifically, the 
Commission should define entities covered by any automatic data roaming 
rule.
    32. The Commission seeks comment on whether there are any subsets 
of non-interconnected data services to which roaming requirements 
should not apply. For example, should the Commission propose that any 
automatic roaming obligation on data service providers exclude non-
facilities-based entities such as resellers? The Commission also notes 
that the automatic roaming obligation for interconnected services is 
restricted to such providers as are in actual competition for the 
provision of such services. Given that promoting competition would 
likewise be a key reason to establish roaming obligations on non-
interconnected services, is there a comparable restriction the 
Commission should impose on the scope of such obligation to achieve the 
same purpose?
    33. Other Terms and Conditions. The Commission also seeks comment 
on what specific terms, conditions, or restrictions the Commission 
should include in any rule requiring the provision of data roaming. For 
example, what conditions could the Commission adopt to help ensure that 
providers' incentives to innovate and invest are not undermined? The 
Commission previously sought comment on whether the potential adverse 
effect on incentives might be mitigated by conditioning roaming access 
to non-interconnected services in the same manner as the Commission has 
with push-to-talk and SMS: requiring that (1) the requesting provider 
provide the underlying service for which roaming is requested, (2) 
roaming be technically feasible, and (3) any changes to the host 
network necessary to accommodate roaming access to the requested 
service be economically reasonable. The Commission again seeks comment 
on whether these conditions, or some variation, should be adopted.
    34. Leap supports imposing the first condition above on data 
roaming, arguing that this would ``remove any question of free-riding 
on the innovation of others'' and ``would leave ample room for product 
differentiation'' because a provider that developed proprietary 
enhanced services or applications would not have to provide them to 
roaming subscribers. Verizon Wireless and MetroPCS raise concerns, 
however. Verizon Wireless argues that the proposal requires too little: 
under this proposal, it asserts, a provider that makes a minimal 
investment to support a data service on a ``handful of EVDO antennas'' 
in its home market would be able to obtain data services on a 
competitor's nationwide network. MetroPCS argues, however, that it 
requires too much: requiring the requesting provider to offer the 
requested data service on its own home network would be ``impracticable 
and would foster unnecessary litigation.'' It further argues that there 
were many legitimate reasons why a provider might not offer a 
particular service in one or more of its home markets, including 
variations in the spectrum resources available to the provider.
    35. The Commission continues to believe that these conditions lay a 
solid foundation for any roaming requirement. On the one hand, as with 
the Commission's automatic voice roaming requirement, a data roaming 
requirement is not intended to constitute a resale requirement. The 
Commission would decide in the case of a specific dispute whether data 
roaming should be provided in a particular instance, and on what terms, 
or whether the request is essentially a request for resale. On the 
other hand, requiring a provider to offer a data service on its home 
network would appear to be an essential element of a request for 
roaming coverage as opposed to resale. To the extent that the lack of a 
roaming arrangement may make competitive entry in the mobile services 
market difficult for small providers, would it be useful to clarify 
that providers that do not offer data services may obtain roaming 
arrangements that become effective when they offer their own data 
services?
    36. With regard to the second and third conditions, and the extent 
to which they require changes to the network, the Commission seeks 
further comment on whether these conditions will address concerns 
regarding the potential technical issues that may arise when 
implementing data roaming arrangements. The Commission seeks comment on 
whether the Commission should clarify that to the extent requesting 
providers can resolve issues of accommodation through changes to their 
own network, a reasonable request must include an offer to make such 
changes.
    37. Dispute Resolution. The Commission seeks comment on the 
appropriate process for dispute resolution, and whether the Commission 
should provide the same process for data roaming requests as for other 
roaming requests. The Commission also seeks comment on whether it 
should adopt measures to require or encourage disputes over the 
reasonableness of requests for data roaming to be resolved through 
alternative dispute resolution procedures such as arbitration. Are 
there any legal considerations, limitations or concerns for the 
Commission to consider with respect to adoption of alternative disputes 
resolution procedures? If such measures are appropriate for data 
roaming disputes, should they be applicable to roaming disputes more 
generally?

II. Procedural Matters

A. Initial Regulatory Flexibility Analysis

    38. As required by the Regulatory Flexibility Act of 1980 
(``RFA''), the Commission has prepared an Initial Regulatory 
Flexibility Analysis (``IRFA'') relating to the Second Further Notice 
of Proposed Rulemaking, The IRFA is set forth below.

Initial Regulatory Flexibility Analysis

    39. As required by the Regulatory Flexibility Act of 1980, as 
amended (the ``RFA''), the Commission has prepared this Initial 
Regulatory Flexibility Analysis (IRFA) of the possible significant 
economic impact of the policies and rules proposed in the Second 
Further Notice of Proposed Rulemaking (``Second FNPRM'') on a 
substantial number of small entities. Written public comments are 
requested

[[Page 22345]]

on the IRFA. Comments must be identified as responses to the IRFA and 
must be filed by the deadline for comments on the Second FNPRM provided 
in the item. The Commission will send a copy of the Second FNPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (``SBA''). In addition, the Second FNPRM and 
IRFA (or summaries thereof) will be published in the Federal Register.

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

    40. In the Second FNPRM, the Commission invites interested parties 
to refresh the record pertaining to the 2007 Roaming FNPRM. Since the 
2007 Roaming FNPRM, there have been advancements in technology and 
developments in the industry that may have affected parties' positions 
on the issues raised in the FNPRM. Accordingly, the Commission requests 
that parties refresh the record in this proceeding to reflect the 
effects of these developments. The Commission asks parties to include 
any new information that may be relevant to the Commission's 
consideration of what action, if any, may be appropriate in this 
proceeding. In addition, as the previous FNPRM was limited to seeking 
comment on the obligations of CMRS carriers that also provide non-CMRS 
data services, the Commission takes this opportunity to seek comment on 
whether to impose similar obligations on other mobile data service 
providers, whether they offer CMRS or not. For these reasons, the 
Commission seeks further comment on whether it would be in the public 
interest to extend roaming obligations to non-interconnected services, 
including broadband data.

B. Legal Basis

    41. The authority for the actions taken in this Second 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

    42. 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. The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. 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).
    43. 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 proposes in this Second FNPRM. The 
Commission's extension of the automatic roaming obligation to non-
interconnected services and features, including those that constitute 
information services, affects any CMRS carrier offering such services.
    44. This IRFA 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 IRFA 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.
    45. Wireless Telecommunications Carriers (except Satellite). Since 
2007, the Census Bureau has placed wireless firms within this new, 
broad, economic census category. Prior to that time, such firms were 
within the now-superseded categories of ``Paging'' and ``Cellular and 
Other Wireless Telecommunications.'' Under the present and prior 
categories, the SBA has deemed a wireless business to be small if it 
has 1,500 or fewer employees. Because Census Bureau data are not yet 
available for the new category, the Commission will estimate small 
business prevalence using the prior categories and associated data. For 
the category of Paging, data for 2002 show that there were 807 firms 
that operated for the entire year. Of this total, 804 firms had 
employment of 999 or fewer employees, and three firms had employment of 
1,000 employees or more. For the category of Cellular and Other 
Wireless Telecommunications, data for 2002 show that there were 1,397 
firms that operated for the entire year. Of this total, 1,378 firms had 
employment of 999 or fewer employees, and 19 firms had employment of 
1,000 employees or more. Thus, the Commission estimates that the 
majority of wireless firms are small.
    46. Wireless Service Providers. The SBA has developed a small 
business size standard for wireless firms within the two broad economic 
census categories of ``Paging'' and ``Cellular and Other Wireless 
Telecommunications.'' 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. Of this 
total, 804 firms had employment of 999 or fewer employees, and three 
firms had employment of 1,000 employees or more. 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. Of this total, 1,378 firms had employment of 999 or fewer 
employees, and 19 firms had employment of 1,000 employees or more. 
Thus, under this second category and size standard, the majority of 
firms can, again, be considered small.
    47. Cellular Licensees. The SBA has developed a small business size 
standard for small businesses in the category ``Cellular and Other 
Wireless Telecommunications.'' Under that SBA category, a business is 
small if it has 1,500 or fewer employees. 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. Of this total, 1,378 firms had employment 
of 999 or fewer employees, and 19 firms had employment of 1,000 
employees or more. Thus, under this category and size standard, the 
majority of firms can be considered small.
    48. 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. 
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

[[Page 22346]]

gross revenues of not more than $15 million for the preceding three 
calendar years. These small business size standards, in the context of 
broadband PCS auctions, have been approved by the SBA. 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. 
In 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; 
there were 113 small business winning bidders.
    49. In 2001, the Commission completed the auction of 422 C and F 
Broadband PCS licenses in Auction 35. 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. In 2005, the Commission completed an auction of 
188 C block licenses and 21 F block licenses in Auction 58. There were 
24 winning bidders for 217 licenses. Of the 24 winning bidders, 16 
claimed small business status and won 156 licenses. In 2007, the 
Commission completed an auction of 33 licenses in the A, C, and F 
Blocks in Auction 71. Of the 14 winning bidders, six were designated 
entities. In 2008, the Commission completed an auction of 20 Broadband 
PCS licenses in the C, D, E and F block licenses in Auction 78.
    50. Narrowband Personal Communications Service. In 1994, the 
Commission conducted an auction for Narrowband PCS licenses. A second 
auction was also conducted later in 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. Through these auctions, the Commission awarded a total 
of 41 licenses, 11 of which were obtained by four small businesses. 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. 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. 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. 
The SBA has approved these small business size standards. A third 
auction was conducted in 2001. Here, five bidders won 317 (Metropolitan 
Trading Areas and nationwide) licenses. Three of these claimed status 
as a small or very small entity and won 311 licenses.
    51. 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. 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. The SBA has approved these small 
business size standards for the 900 MHz Service. The Commission has 
held auctions for geographic area licenses in the 800 MHz and 900 MHz 
bands. The 900 MHz SMR was completed in 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 was conducted in 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. A second auction for the 800 MHz 
band was conducted in 2002 and included 23 BEA licenses. One bidder 
claiming small business status won five licenses.
    52. The auction of the 1,050 800 MHz SMR geographic area licenses 
for the General Category channels was conducted in 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 in 2000, a total of 
2,800 Economic Area licenses in the lower 80 channels of the 800 MHz 
SMR service were awarded. 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 businesses.
    53. 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 $15 million. One firm has over $15 
million in revenues. In addition, the Commission does not know how many 
of these firms have 1500 or fewer employees. The Commission assumes, 
for purposes of this analysis, that all of the remaining existing 
extended implementation authorizations are held by small entities, as 
that small business size standard is approved by the SBA.
    54. AWS Services (1710-1755 MHz and 2110-2155 MHz bands (AWS-1); 
1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands 
(AWS-2); 2155-2175 MHz band (AWS-3)). For the AWS-1 bands, the 
Commission has defined 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. 
For AWS-2 and AWS-3, although the Commission does not know for certain 
which entities are likely to apply for these frequencies, the 
Commission notes that the AWS-1 bands are comparable to those used for 
cellular service and personal communications service. The Commission 
has not yet adopted size standards for the AWS-2 or AWS-3 bands but 
proposes to treat both AWS-2 and AWS-3 similarly to broadband PCS 
service and AWS-1 service due to the comparable capital requirements 
and other factors, such as issues involved in relocating incumbents and 
developing markets, technologies, and services.
    55. Rural Radiotelephone Service. The Commission has not adopted a 
size standard for small businesses specific to the Rural Radiotelephone 
Service. A significant subset of the Rural Radiotelephone Service is 
the Basic Exchange Telephone Radio System (``BETRS''). In the present 
context, the Commission will use the SBA's small business size standard 
applicable to Wireless Telecommunications Carriers (except Satellite), 
i.e., an entity employing no more than 1,500 persons. 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.
    56. Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation, and digital

[[Page 22347]]

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. The SBA has approved 
these definitions. 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.
    57. 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 Wireless 
Telecommunications Carriers (except Satellite). This category provides 
that a small business is a wireless company employing no more than 
1,500 persons. The Commission estimates that most such licensees are 
small businesses under the SBA's small business standard.
    58. 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 
a new service, and 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. 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. 
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. The SBA 
has approved these small size standards. Auctions of Phase II licenses 
commenced on and closed in 1998. 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