Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, 22263-22276 [2010-9832]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 81 (Wednesday, April 28, 2010)]
[Rules and Regulations]
[Pages 22263-22276]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9832]


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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: Final rule.

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SUMMARY: In the Order on Reconsideration, the Commission modifies the 
automatic roaming obligation that the Commission adopted for voice and 
related services in 2007 by eliminating the home roaming exclusion.

DATES: Effective May 28, 2010.

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 Second Further Notice of Proposed 
Rulemaking (Second FNPRM) 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 Order on Reconsideration Section of the Order on 
Reconsideration and Second Further Notice of Proposed Rulemaking

I. Introduction

    1. In this order, the Commission takes action to increase 
consumers' access to seamless nationwide mobile services, wherever and 
whenever they choose, and to promote investment, innovation, and 
competition in mobile wireless services. In the Order on 
Reconsideration, the Commission creates a framework for voice roaming 
that will encourage carriers of all sizes to reach reasonable 
commercial roaming agreements, while also encouraging these carriers to 
continue investing in the coverage and capacity of their networks. The 
Commission will adjudicate any disputes that may arise between carriers 
through a tailored, fact-based process. In the Second FNPRM, consistent 
with the recommendation of the National Broadband Plan, the Commission 
opens an examination of the critical issue of data roaming, by seeking 
comment on the rules that should apply to roaming for mobile data 
services such as mobile broadband service.
    2. First, in the Order on Reconsideration, the Commission modifies 
the automatic roaming obligation that the Commission adopted for voice 
and related services in 2007 by eliminating the home roaming exclusion. 
With this decision, the Commission continues to strive to adopt 
policies that balance competing interests, including--promoting 
competition among multiple carriers; ensuring that consumers have 
access to seamless coverage nationwide; and providing incentives for 
all carriers to invest and innovate by using available

[[Page 22264]]

spectrum and constructing wireless network facilities on a widespread 
basis. Upon reconsideration, the Commission finds that an up-front, 
categorical exclusion of home roaming from the automatic roaming 
obligation does not strike the best balance in furthering these goals. 
As a result of the Commission's decision, home roaming will be subject 
to the automatic roaming requirement and, as a common carrier service, 
is subject to Sections 201 and 202 of the Act. The Commission will 
apply the same general presumption of reasonableness to requests for 
home roaming that the Commission applies to other requests for 
automatic roaming, and take into account the competing interests when 
addressing roaming disputes on a case-by-case basis. Specifically, the 
Commission establishes a general presumption that a request for 
automatic roaming is reasonable, in the first instance, if a requesting 
CMRS carrier's network is technologically compatible with the would-be 
host carrier's network, and the Commission will require a CMRS carrier 
receiving a reasonable request to provide automatic roaming on 
reasonable and not unreasonably discriminatory terms and conditions. 
The general presumption of reasonableness, however, is rebuttable, and 
parties may choose to bring roaming disputes to the Commission for 
resolution. The Commission will address such disputes on a case-by-case 
basis, taking into consideration the totality of the circumstances 
presented to determine whether requiring a roaming agreement would best 
further the Commission's public interest goals in such particular case.
    3. Second, the Commission addresses in a Second FNPRM whether to 
extend roaming obligations to data services that are provided without 
interconnection to the public switched network--including mobile 
broadband services. 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 
seamless and ubiquitous coverage. Ubiquitous 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. The Commission seeks to develop a more detailed and 
updated record before the Commission makes a final determination 
regarding broadband data roaming. In 2007, the Commission sought 
comment on this issue in a five-paragraph Further Notice. In response, 
parties filed certain specific proposals regarding the rules, if any, 
that should govern roaming for mobile data services. Since that time, 
there have been numerous developments in the industry and advancements 
in technology that are likely to be relevant to the Commission's 
analysis, and that have affected at least one party's positions in this 
proceeding. To help us determine the right approach for mobile 
broadband roaming, the Commission wants to ensure that such 
developments are fully incorporated into the Commission's decision 
making on this important issue. Accordingly, the Commission seeks 
comment on the specific, concrete proposals offered in response to the 
2007 Further Notice, as well as seeking additional proposals that 
parties may choose to offer response to the Second FNPRM. In addition, 
the Commission expands the scope of its proceeding by seeking comment 
on obligations governing the provision of roaming for such data 
services by providers that are not CMRS carriers as well as by 
providers that also provide CMRS services.

II. Order on Reconsideration

    4. In this Order on Reconsideration, the Commission first 
eliminates the home roaming exclusion adopted in 2007. Instead, the 
Commission will treat requests for automatic roaming in home markets 
under the same framework as other requests for automatic roaming. 
Second, the Commission denies Sprint Nextel's request to reconsider the 
decision to extend automatic roaming obligations to push-to-talk. 
Finally, the Commission addresses the issues raised in SpectrumCo's 
petition for reconsideration in the Second FNPRM below.

A. Elimination of Home Roaming Exclusion

    5. In this Order on Reconsideration, the Commission strives to 
adopt policies that balance competing interests of promoting 
competition, encouraging new entry, protecting consumers, and fostering 
investment. As discussed below, however, these goals are sometimes in 
tension. To best further these goals, the Commission eliminates the 
home roaming exclusion and generally presumes that a request for 
automatic roaming will be reasonable in the first instance if the 
requesting carrier's network is technologically compatible. This 
general presumption of reasonableness, however, is rebuttable. The 
Commission finds that such presumption of reasonableness will 
facilitate all roaming arrangements between carriers, including those 
for home roaming, ultimately benefiting consumers. Yet, in the event of 
a dispute, it also will allow the Commission to take into consideration 
the totality of the circumstances presented to determine whether 
requiring a roaming agreement would best further the Commission's 
public interest goals in such particular case.
    6. Based on the record before us, the Commission concludes that it 
is in the public interest to modify its rules with respect to automatic 
roaming by eliminating the home roaming exclusion that the Commission 
previously applied to the automatic roaming requirement for voice and 
related services. Thus, the Commission will presume a request for 
automatic roaming to be reasonable, in the first instance, if the 
requesting carriers' network is technologically compatible, regardless 
of whether the request is for areas inside or outside of the requesting 
carrier's home market, and the Commission will require a CMRS carrier 
receiving a reasonable request to provide automatic roaming service to 
the requesting carrier on reasonable and not unreasonably-
discriminatory terms and conditions. The Commission continues to 
support the goal of promoting facilities-based competition by providing 
incentives for carriers to construct wireless network facilities on the 
spectrum available to them. Upon reconsideration, however, the 
Commission concludes that the up-front categorical home roaming 
exclusion adopted by the 2007 Report and Order would in many 
circumstances discourage, rather than encourage, the facilities-based 
competition it sought to promote. The Commission also remains mindful 
of the need in the roaming context to balance a number of competing 
interests, including--promoting competition (including facilities-based 
competition), encouraging new entry, protecting consumers, and 
fostering innovation and investment.
    7. Although some parties have advocated that the Commission modify 
the home market exclusion in any of a number of ways, for example, by 
delaying its applicability for some period after a carrier obtains an 
initial spectrum license, the Commission decides that the better and 
simpler course is to eliminate the exclusion and address in particular 
cases the competing interests, including the concerns that motivated 
the adoption of the exclusion. Through the elimination

[[Page 22265]]

of the home roaming exclusion, the Commission seeks to encourage 
parties to negotiate roaming agreements--based on reasonable terms and 
conditions--that fill in gaps in their network coverage, including in 
areas where they hold spectrum rights. The Commission's expectation is 
that, with the revised rule adopted in this Order setting out an 
underlying obligation to provide automatic roaming, the Commission has 
laid the foundation to enable carriers to successfully negotiate 
reasonable roaming arrangements, including requests for home roaming.
    8. The Commission stands ready, however, to the extent necessary, 
to resolve roaming disputes including whether a particular requesting 
carrier's request is reasonable, or whether a would-be host carrier has 
met its obligation to provide roaming on reasonable and not 
unreasonably discriminatory terms and conditions. This case-by-case 
analysis, through the dispute resolution process, will enable the 
Commission to take into consideration the particular circumstances of 
each dispute as they are relevant to the Commission's goals to 
determine whether a particular automatic roaming request, and the 
would-be host carrier's response, are reasonable.
    9. Initially, the Commission finds that the home roaming exclusion, 
as adopted, failed to achieve its stated purposes in a number of 
respects. In adopting the home roaming exclusion, the Commission sought 
to promote facilities-based competition by preserving appropriate 
incentives for carriers to construct facilities in areas where they 
have spectrum holdings. The record highlights, however, that in certain 
circumstances the exclusion can hinder the development of such 
competition and create disincentives to construct. In particular, the 
home roaming exclusion as adopted unintentionally created confusion as 
to roaming rights and led some to conclude that a carrier effectively 
has no right to request roaming in any market where it held spectrum, 
and the would-be host carrier has no obligation to negotiate roaming 
arrangements. This would be the case even when that spectrum is newly 
licensed and the carrier seeking roaming thus has never had any 
opportunity to build any facilities in any part of the licensed 
spectrum. The Commission finds that the home roaming exclusion as 
adopted can in effect require carriers entering new markets to build 
out their networks extensively throughout the newly obtained license 
area before they can provide a competitive service to consumers, all 
without the benefit of financing the construction of new networks over 
time with revenues from existing services and reliance on roaming to 
fill in gaps during build out. With ``home market'' defined under the 
exclusion on the basis of an entire license area (e.g., CMA, BTA, EA, 
REAG), this buildout burden can be significant, and potentially can 
even cover several States (e.g., if licensed on an REAG basis). In such 
circumstances, the Commission finds that the exclusion can delay or 
deter entry into a market because a carrier seeking to provide service 
in a new geographic area, without the ability to supplement its 
networks with roaming and whose initial facilities would necessarily be 
limited, would be required to compete with incumbents that had been 
developing and expanding their networks for many years. The Commission 
has previously recognized that this ``head-start'' advantage can 
constitute a significant hurdle to new competition.
    10. In addition, although the exclusion was intended to incentivize 
carriers to use their spectrum holdings through additional buildout, it 
deprives them of roaming rights even in circumstances where their 
spectrum is not available or usable for reasons beyond their control. 
For example, a carrier's AWS-1 spectrum holding might be unavailable 
because of the unfinished relocation of U.S. Government incumbent users 
from that band. In other instances, an area may be subject to legal 
constraints that permit only one carrier to offer service (e.g., in 
certain subway systems or government lands), notwithstanding the 
nominal coverage of the area by a license held by another carrier.
    11. Another reason for eliminating the home roaming exclusion is 
that it does not adequately account for the fact that building another 
network may be economically infeasible or unrealistic in some 
geographic portions of licensed service areas. The Commission finds 
that, in some areas of the country with very low population densities, 
it is simply uneconomic for several carriers to build out. Further, the 
Commission notes that it may be significantly more costly to build out 
when the carrier only has access to higher spectrum frequencies where 
propagation characteristics are less advantageous. Indeed, every 
carrier, including every nationwide carrier holding licenses that cover 
the entire country, relies on roaming to some extent to fill in gaps in 
its network coverage. In particular, the record reflects that for many 
CMRS carriers, there are areas within their licensed service areas 
where there is insufficient demand to support construction in those 
areas by another carrier.
    12. To address these issues, some parties propose that the 
Commission retain some modified form of the home roaming exclusion. 
These proposals vary significantly in terms of the timing and scope of 
implementation, and whether in particular instances there should be 
exceptions to the exclusion. For instance, many suggest that 
implementation of the home roaming exclusion be delayed for some period 
following the effective date of the order. Some advocate that the 
exclusion take effect in a particular location only after a period of 
time following the availability of spectrum to a new licensee--which 
may occur with the initial issuance of a license by the Commission or 
only after the license is no longer encumbered for reasons beyond the 
requesting carrier's control. The particular suggestions for the 
limited period of time range widely, between one year and seven years. 
Other suggestions include the possibility that the exclusion not apply 
for an additional time period if a requesting carrier meets Commission-
specified build-out benchmarks on a population or geographic coverage 
basis within specific time periods. As another alternative, some 
suggest that, after an initial transition period during which home 
roaming would be provided, the home roaming exclusion would apply where 
the would-be host carrier affirmatively establishes that the requesting 
carrier has failed to make progress in building out.
    13. The Commission concludes that the better, simpler approach is 
to eliminate the home roaming exclusion. The Commission finds the 
reasonableness of a roaming request in many instances will likely 
depend on the individual circumstances of a particular request. For 
instance, the Commission recognizes the difficulties in determining 
accurately whether a carrier has avoided facilities-based entry in a 
high cost area because it is prohibitively difficult or merely less 
profitable than urban areas. This difficulty, however, and the 
intensively fact-based nature of the issue, weighs in favor of a case-
by-case, fact-driven approach that the Commission is adopting for 
resolving disputes over roaming arrangements. The Commission discusses 
below the various factors that will guide the resolution of any 
disputes brought before it.
    14. The Commission also notes that, in the 2007 Report and Order, 
the Commission continued to encourage all

[[Page 22266]]

CMRS carriers to negotiate reasonable roaming agreements. It 
specifically contemplated that, even with the home roaming exclusion, 
CMRS carriers would continue voluntarily to negotiate automatic roaming 
agreements that included home roaming. The record supports the 
conclusion that the Commission's home roaming exclusion is hampering 
CMRS carriers' abilities to negotiate automatic roaming agreements for 
home roaming or obtain renewal of existing automatic roaming agreements 
that included home roaming, and will likely have a growing impact in 
the future. The Commission finds that the home roaming exclusion 
unintentionally changed the status quo with regard to carriers' 
previously existing practices in negotiating roaming agreements and may 
have disrupted settled expectations of competitive carriers on which 
they formed long-term business models.
    15. In particular, the Commission rejects the arguments of AT&T and 
Verizon Wireless that carriers cannot claim any harm in the home 
roaming exclusion because it merely maintains a status quo under which 
they have never had any rights to home roaming. Although, prior to the 
2007 Report and Order, the Commission had not expressly provided that 
there was a home roaming obligation under Sections 201 and 202, nor 
adopted any rules requiring the provision of such services, it had 
stated on several occasions that carriers that were unreasonably denied 
automatic roaming could seek relief under Section 201. For example, 
when addressing in its 2000 Notice of Proposed Rulemaking whether to 
adopt an automatic roaming requirement, the Commission began by 
affirming that ``roaming is a common carrier service * * * and thus * * 
* the provision of roaming is subject to the requirements of Section 
201(b), 202(a), and 332(c)(1)(B) of the Communications Act.'' It then 
sought comment on, among other things, whether ``the avenues of 
complaint and redress afforded by Section 208 provide sufficient and 
appropriate means of ensuring the development of automatic roaming 
services in a competitive CMRS market.'' Similarly, in the 2005 Roaming 
Reexamination NPRM, the Commission began a further consideration of 
whether to adopt an explicit automatic roaming requirement by stating 
that ``complaints and enforcement actions involving unjust and 
unreasonable charges, practices, or discriminatory conduct by CMRS 
carriers in the provision of roaming services are covered by the 
complaint process set forth in Title II of the Act.'' During this 
period, the Commission also indicated in transactions-related orders 
that automatic roaming was subject to the statutory obligations under 
Section 208.
    16. In referring to existing carrier obligations under Section 201 
and 202, the Commission generally did not distinguish between home 
roaming and automatic roaming. Further, during this period, automatic 
roaming arrangements were being negotiated among carriers, with no 
specific indication that home roaming agreements were particularly 
problematic. Thus, the Commission finds that the clarifications in the 
2007 Report and Order did alter the legal status quo against which 
automatic roaming arrangements were being negotiated, and that the 
adoption of an automatic roaming obligation with a home roaming 
exclusion appears to have significantly reduced the incentive to make 
home roaming available, and will lead to a reduction in the 
availability of home roaming arrangements over time. Indeed, as 
discussed earlier, the record supports the conclusion that the 
Commission's home roaming exclusion is hampering CMRS carriers' 
abilities to negotiate automatic roaming agreements that include home 
roaming.
    17. Other factors may be contributing to a declining availability 
of roaming arrangements in home markets, which further supports the 
Commission's action here. For one, since the Commission's adoption of 
the home roaming exclusion, there have been a number of significant 
mergers consummated in the last two and a half years. MetroPCS states 
that, with the consolidation in the industry, the number of roaming 
partners is diminishing, making it less likely that leaving 
negotiations involving home roaming strictly to the market without any 
underlying regulatory obligations, will result in fewer such roaming 
agreements. Additionally, T-Mobile provides an expert report with an 
economic analysis of roaming that recommends the elimination of the 
home roaming exclusion in light of the significant changes in the 
wireless industry since the 2007 Report and Order was released. AT&T 
points out that, with respect to each wireless transaction approved 
since 2007, the Commission has concluded that the transaction, with or 
without conditions, served the public interest and argues that the 
transactions have yielded significant consumer benefits in that AT&T 
brings to the customers of the acquired carrier access to the same 
wireless services and products, such as next-generation networks and 
innovative voice and data plans, that are available to customers in the 
most densely populated areas. While the Commission has approved these 
transactions, with conditions, as not resulting in any transaction-
specific competitive harm, those orders have recognized the legitimacy 
of addressing roaming issues in a rulemaking context and the Commission 
finds that broad industry trends should be considered in evaluating the 
availability of reasonable home roaming arrangements. The Commission 
finds that, in some areas, the consolidation in the wireless industry 
may have reduced the number of available roaming partners for some of 
the smaller, regional and rural carriers. This trend thus may have 
contributed to reductions in the availability of voluntary and 
reasonable roaming arrangements, including arrangements for home 
roaming. Regardless of the factors behind the apparent decline in the 
availability of such roaming arrangements, the Commission finds further 
grounds to reconsider an upfront, categorical home roaming exclusion 
that can serve as a bar to negotiation of reasonable arrangements.
    18. The Commission rejects contentions by AT&T and Verizon Wireless 
that the Commission needs to retain the home roaming exclusion so as 
not to undermine facilities-based service or discourage competition 
based on coverage and service quality. According to AT&T, the home 
roaming exclusion has positive effects on competition and there is no 
justification for allowing a company to take advantage of its 
competitor's investment in network infrastructure and superior in-
market coverage. Verizon Wireless similarly argues the home roaming 
exclusion should be retained because it encourages build-out in high 
cost areas and serves the public interest by allowing carriers that 
have made the investment to construct facilities in high cost areas to 
differentiate themselves on the basis of superior coverage. Verizon 
Wireless also states that repealing the home roaming exclusion would 
undermine the pro-competitive benefits that flow from carriers 
differentiating themselves on the basis of superior coverage in the 
home market, and would also undermine the requesting carriers' 
incentive to build network facilities to improve coverage in their 
licensed areas.
    19. The Commission agrees that there are pro-competitive benefits 
that flow from carriers differentiating themselves on the basis of 
coverage in their licensed service areas, including in rural and remote 
areas. However, the Commission

[[Page 22267]]

is not persuaded that replacing the current categorical home roaming 
exclusion with a case-by-case assessment of reasonableness, based on 
the reasonableness of a particular roaming request, will undermine 
these pro-competitive benefits. The Commission seeks here to balance 
various factors, which, in addition to fostering investment, include 
promoting competition, encouraging new entrants, and protecting the 
interests of consumers. The Commission also considers that outcomes can 
have both positive and negative effects on the build-out incentives of 
both requesting and host carriers, and these considerations must also 
be weighed. In balancing these effects and factors, the Commission 
finds that adopting an approach that includes a general presumption of 
reasonableness with respect to automatic roaming, combined with a case-
by-case determination of reasonableness in the event of a dispute, 
better preserves incentives to enter and incentives to invest overall, 
and at the same time protects consumers by facilitating their access to 
ubiquitous service.
    20. AT&T argues that, if the first carrier providing coverage in a 
given area were required to provide automatic home roaming service to 
its competitors' customers, there would be no reason for competitors to 
build out their own networks in that area. The Commission disagrees. 
Carriers deploying next generation networks will still have incentives 
to build out to ensure that their subscribers receive all of the 
benefits of the carriers' own advanced networks. The Commission finds 
that, as a practical matter, the relatively high price of roaming 
compared to providing facilities-based service will often be sufficient 
to counterbalance the incentive to ``piggy back'' on another carrier's 
network. Further, the Commission emphasizes that host carriers have 
flexibility, subject to a standard of reasonableness, to establish the 
structure and the level of roaming rates, and that, as described below, 
the fact that a requesting carrier holds spectrum, or is offering 
service on its own facilities, in an area are among the factors the 
Commission may consider in addressing disputes. Accordingly, the impact 
of a roaming obligation on buildout incentives does not warrant a 
general exclusion, but should be considered as a factor on a case-by-
case basis in the event of a dispute.
    21. The Commission rejects as well AT&T's argument that there is no 
evidence to suggest that home roaming is necessary to eliminate the 
``head start'' advantage of larger carriers. As discussed above, the 
Commission finds that the record amply supports a finding that in the 
absence of roaming arrangements, such an advantage will deter 
investment and constitute a significant hurdle to competition.
    22. AT&T also argues that no regulatory intervention is necessary 
because there is competition in the retail market and no harm to 
consumers. The Commission notes that in the 2007 Report and Order, the 
Commission already rejected this argument when it found that automatic 
roaming is a common carrier service and adopted the automatic roaming 
rule, concluding that ``[g]iven the current CMRS market situation and 
wireless customer expectations, []it is in the public interest to 
facilitate reasonable roaming requests by carriers on behalf of 
wireless customers.'' As noted in the 2007 Report and Order, consumers 
increasingly rely on mobile services, they reasonably expect to 
continue their wireless communications wherever they are, and automatic 
roaming benefits them by promoting seamless CMRS service around the 
country. In this order, the Commission merely places requests for home 
roaming under the same framework as other requests for roaming 
services. As discussed above, the Commission's decision here will 
protect consumers, promote competition, ensure that consumers have 
access to seamless coverage nationwide, and provide incentives for all 
carriers to invest and innovate by using available spectrum and 
constructing wireless network facilities on a widespread basis.
    23. The Commission also disagrees with AT&T's contention that 
elimination of the home roaming exclusion would create de facto 
mandatory resale obligations. The automatic roaming obligation imposed 
in the 2007 Roaming Order under Sections 201 and 202, and that the 
Commission expands here with the elimination of the home roaming 
exclusion, is not intended to resurrect CMRS resale obligations. The 
Commission's mandatory resale rule was sunset in 2002, and, as the 
Commission previously stated, the automatic roaming obligations cannot 
be used as a backdoor way to create de facto mandatory resale or 
virtual reseller networks. The Commission finds that its actions herein 
in eliminating the home roaming exclusion will not effectively change 
the Commission's policy on CMRS resale obligations. While resale 
obligations are intended to offer carriers the opportunity to market a 
competitive retail service without facilities development, such a 
resale product would not serve the Commission's goals of promoting 
facilities-based competition, the development of spectrum resources, 
and the availability of ubiquitous coverage.
    24. Addressing disputes. To the extent there is a disagreement 
between CMRS carriers regarding automatic roaming requests, including 
requests for home roaming rights, carriers may seek a determination 
from the Commission as to whether the parties have met their 
obligations with regard to automatic roaming. The Commission reaffirms 
here its intent to address such roaming disputes expeditiously. Whether 
or not the appropriate procedural vehicle is a complaint under Section 
208 of the Act or a petition for declaratory ruling under Section 1.2 
of the Commission's rules may vary depending on the circumstances of 
each case. If a dispute arises regarding automatic roaming obligations, 
parties are encouraged to contact Commission staff for procedural 
guidance and for negotiations using the Commission's informal dispute 
resolution processes. Below, the Commission provides some clarification 
as to how such disputes will be addressed.
    25. The Commission first emphasizes that CMRS carriers' statutory 
obligations regarding automatic roaming are not framed in absolute 
terms. Under Sections 332(c)(1)(B), 201 and 202, the request to obtain 
automatic roaming must be ``reasonable.'' Furthermore, Section 201(b) 
requires carriers' practices relating to their provision of automatic 
roaming to be ``reasonable'' and Section 202(a) prohibits ``unjust and 
unreasonable'' discrimination. Thus, in each instance, the statutory 
obligation is qualified by a ``reasonableness'' standard. The 
Commission has broad discretion in interpreting these statutory 
obligations and the application of the ``reasonableness'' standard to a 
particular context. As discussed below, in resolving roaming disputes, 
the Commission will assess whether a request is reasonable and whether 
the host carrier's response to the request is reasonable and not 
unreasonably discriminatory based on the totality of the circumstances 
of a particular case.
    26. In resolving disputes, the Commission will presume, in the 
first instance, that a request for automatic roaming of covered 
services by a technologically compatible carrier is reasonable under 
Sections 332(c), 201 and 202, regardless of whether the request 
includes areas where the requesting carrier holds spectrum rights. When 
a presumptively reasonable automatic roaming request is made, a would-
be host CMRS carrier has a duty to respond promptly to the request and

[[Page 22268]]

avoid actions that unduly delay or stonewall the course of negotiations 
regarding that request. For example, following receipt of a 
presumptively reasonable automatic roaming request, evidence of a 
would-be host carrier's refusal to respond at all or a persistent 
pattern of stonewalling behavior will likely support a finding of a 
breach of the would-be host carrier's automatic roaming obligations.
    27. As discussed above, the Commission seeks to encourage parties 
to negotiate roaming agreements based on reasonable terms and 
conditions. In case of a dispute, the Commission's consideration begins 
with the presumption that a request by a technologically compatible 
carrier for automatic roaming is reasonable. This presumption of 
reasonableness, however, is rebuttable, and host carriers may seek to 
demonstrate, under their particular circumstances, that the general 
presumption of reasonableness with respect to the provision of 
automatic roaming requests meeting the conditions specified above 
should not apply. Below, the Commission provides additional guidance on 
factors the Commission may consider when resolving such roaming 
disputes that are brought before it--specifically in determining 
whether a request is reasonable and whether the host carrier's response 
to the request is reasonable and not unreasonably discriminatory. Each 
case will be decided based on the totality of the circumstances, such 
that no particular factor will be dispositive. With that in mind, the 
Commission clarifies that it may consider the following factors, as 
well as others, when considering whether requiring roaming in the 
circumstances at issue would best further the Commission's public 
interest goals:
     The terms and conditions of the proposed roaming 
agreement;
     The level of competitive harm in a given market and the 
benefits to consumers;
     The extent and nature of the requesting carrier's build-
out in the areas where it holds spectrum rights and has requested 
automatic roaming, the length of time the requesting carrier has held 
such spectrum rights, whether such spectrum is encumbered, and if not, 
how long it has been unencumbered;
     Significant economic factors, such as whether building 
another network in the geographic area may be economically infeasible 
or unrealistic, and the impact of any ``head-start'' advantages;
     Whether the requesting carrier is seeking roaming for an 
area where it is already providing facilities-based service;
     The impact of granting the request on the incentives for 
either carrier to invest in new facilities and coverage, new services, 
and service quality;
     Whether the carriers involved have had previous roaming 
arrangements with similar terms;
     Whether alternative roaming partners are available;
     Events or circumstances beyond either carrier's control 
that impact either the provision of automatic roaming or the need for 
roaming in the proposed area(s) of coverage;
     The propagation characteristics of the spectrum licensed 
to the requesting and would-be host carriers, including circumstances 
where the requesting carrier's spectrum rights in an area are limited 
to higher spectrum frequencies where propagation characteristics are 
less advantageous than a host carrier's licensed spectrum;
     Other special or extenuating circumstances.
    28. The Commission notes again that these factors are not exclusive 
or exhaustive. Carriers may argue that the Commission should consider 
other relevant factors in determining whether a request is reasonable 
or a host carrier's position is unreasonable or unreasonably 
discriminatory under Sections 201 and 202 of the Act. In addition, to 
better promote reasonable negotiations on both sides of a request, the 
Commission clarifies that, in determining whether a carrier will be 
found liable for a violation of its obligations under Sections 201 and 
202, the Commission will also consider whether its position had a 
reasonable basis, taking into account all relevant precedents and 
decisions by the Commission.

B. Push-to-Talk

    29. Based on the record, the Commission finds Sprint Nextel has 
failed to demonstrate sufficient grounds for revisiting the 
determination that carriers must provide roaming for push-to-talk 
services upon reasonable request. Accordingly, the Commission denies 
Sprint Nextel's Petition for Reconsideration.
    30. Having reviewed the arguments of all parties and the relevant 
record evidence, the Commission finds Sprint Nextel has failed to 
demonstrate sufficient grounds for revisiting the determination that 
carriers must provide push-to-talk roaming upon reasonable request.
    31. First, the Commission disagrees with Sprint-Nextel that the 
Commission's findings on push-to-talk service were unsupported by 
record evidence. Contrary to Sprint-Nextel's assertion, the record 
provides substantial evidence for the Commission's finding that push-
to-talk is provided both as an interconnected service or feature and as 
a non-interconnected service or feature, depending on the technology 
and network configuration that is chosen by the carrier. Consumers do 
not generally differentiate between push-to-talk that is interconnected 
and push-to-talk that is not interconnected, but form their 
expectations of seamless connectivity based on the way that push-to-
talk service is provided on their cell phones and in their calling 
plans. As the Commission noted in the 2007 Report and Order, the 
Commission finds it in the public interest to protect and promote 
consumer expectations of seamless connectivity by extending automatic 
roaming obligations to push-to-talk. In that regard, the conclusion 
that consumers generally regard push-to-talk services as a feature on 
their handset, provided along with other CMRS services, is supported by 
the Eleventh Competition Report, as well as by other publicly available 
information about the state of the push-to-talk market and by 
commenters. The Commission likewise finds substantial evidence that 
push-to-talk is typically not offered as a stand-alone voice service, 
but is offered solely in conjunction with the activation of basic voice 
service that is an interconnected service. The Commission finds it 
likely consumers consider push-to-talk as a feature on their handsets 
that provides a different type of voice functionality that complements 
their basic voice service. Sprint Nextel has not provided any factual 
evidence to demonstrate that this analysis is incorrect.
    32. The Commission also is not persuaded by Sprint Nextel's other 
arguments. Sprint Nextel disputes whether push-to-talk is in fact an 
``adjunct'' to basic voice service as that term is used in the 
Commission's regulatory scheme. The analysis in the 2007 Report and 
Order, however, did not reference the particular regulatory construct 
cited by Sprint Nextel. Rather, as discussed above, the Commission used 
the term in a more general sense to describe the expectations of 
consumers based on their perception of push-to-talk services as 
provided in the marketplace. As the Commission stated: ``[w]e are also 
aware that consumers consider push-to-talk and SMS as

[[Page 22269]]

features that are typically offered as adjuncts to basic voice 
services, and expect the same seamless connectivity with respect to 
these features and capabilities as they travel outside their home 
network service areas (emphasis added).'' The Commission notes that 
``safeguard[ing] wireless consumers' reasonable expectations of 
receiving seamless nationwide commercial mobile telephony services 
through roaming'' is one of the goals that the Commission considered in 
establishing the parameters of the automatic roaming obligation. 
Further, considering these factors taken together with the significant 
market presence of interconnected push-to-talk, which provides the same 
service functionality and will indisputably be subject to automatic 
roaming requirements, the Commission again finds it in the public 
interest that CMRS providers of push-to-talk voice services should be 
subject to the same automatic roaming obligations regardless of the 
technology or network configuration through which such services are 
provided.
    33. Sprint Nextel's argument that this decision improperly 
adjudicates its dispute with SouthernLINC is also without merit. 
Specifically, the Commission declared its intention to proceed through 
rulemaking in two prior merger proceedings in which Sprint Nextel was a 
party. Moreover, push-to-talk is not a service unique to Sprint Nextel. 
Other nationwide carriers are providing push-to-talk, and all push-to-
talk features and capabilities are covered in the 2007 Report and Order 
regardless of whether the underlying network is iDEN, CDMA, or GSM. In 
determining whether extending roaming obligations to push-to-talk would 
serve the public interest, the Commission examined, among other things, 
the record evidence concerning Sprint Nextel's actions regarding push-
to-talk roaming. SouthernLINC and other small iDEN carriers presented 
evidence that certain customers were unable to obtain seamless push-to-
talk connectivity when outside their home market areas in the absence 
of a roaming agreement with Sprint Nextel. That evidence is a relevant 
part of the overall record respecting ``current market conditions'' and 
``developments in technology'' the Commission considered in making its 
determination whether push-to-talk services should be included in the 
roaming obligations imposed by the order.
    34. Finally, the Commission disagrees that extending automatic 
roaming obligations to push-to-talk will eliminate push-to-talk 
geographic coverage as a market differentiator. As discussed above, the 
scope of a requesting carrier's buildout is one factor the Commission 
will consider in adjudicating disputes regarding the provision of 
automatic roaming. In summary, Sprint Nextel has presented no 
persuasive legal argument or factual evidence to demonstrate that the 
Commission erred in concluding that the imposition of a push-to-talk 
roaming obligation serves the public interest. The Commission therefore 
denies Sprint Nextel's petition for reconsideration with respect to 
push-to-talk roaming.

III. Procedural Matters

A. Final Regulatory Flexibility Analysis

    35. As required by the Regulatory Flexibility Act of 1980 
(``RFA''), the Commission has prepared a Final Regulatory Flexibility 
Analysis (``FRFA'') relating to the Order on Reconsideration. The FRFA 
is set forth below.
Final Regulatory Flexibility Analysis
    36. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Memorandum Opinion & Order and Notice of Proposed 
Rulemaking in WT Docket No. 05-265. The Commission sought written 
public comment on the proposals in that Order and Notice, including 
comment on the IRFA. A Final Regulatory Flexibility Analysis was 
adopted in conjunction with the Commission's Report and Order and 
Further Notice of Proposed Rulemaking in WT Docket No. 05-265. The 
present Final Regulatory Flexibility Analysis (FRFA) conforms to the 
RFA.

A. Need for, and Objectives of, the Order on Reconsideration

    37. In the 2007 Report and Order, the Commission clarified that 
automatic roaming is a common carrier obligation for commercial mobile 
radio service (CMRS carriers), subject to Sections 201 and 202 of the 
Communications Act, and required CMRS carriers to provide automatic 
roaming services to other carriers upon reasonable request on a just, 
reasonable, and non-discriminatory basis. In particular, the Commission 
determined that, when a reasonable request for automatic roaming is 
made by a technologically compatible CMRS carrier (requesting carrier), 
a host CMRS carrier has the obligation under Sections 332(c)(1)(B) and 
201(a) to provide automatic roaming on a just, reasonable, and non-
discriminatory basis to the requesting carrier outside of the 
requesting carrier's home market. The Commission defined the home 
market as any geographic location where the requesting carrier has a 
wireless license or spectrum usage rights that could be used to provide 
CMRS. In excluding home roaming, the Commission found that imposing an 
automatic roaming obligation in home markets where the requesting 
carrier already has the spectrum to compete directly with the would-be 
host carrier would not serve the public interest. In reaching this 
decision, the Commission found ``requiring home roaming could harm 
facilities-based competition and negatively affect build-out in these 
markets, thus adversely impacting network quality, reliability and 
coverage.'' The Commission also, however, recognized the importance of 
home roaming and encouraged all CMRS carriers to negotiate automatic 
roaming in home markets, stating that its decision should not be 
construed as prohibiting a requesting carrier from seeking to negotiate 
home roaming agreements. In addition, the Commission found that the 
scope of the automatic roaming obligation under sections 201 and 202 
includes only 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 utilize an in-network switching 
facility that enables providers to reuse frequencies and accomplish 
seamless hand-offs of subscriber calls. The Commission also found, 
based on several factors, that it would serve the public interest to 
extend the scope of the automatic roaming obligation to push-to-talk 
and SMS, but declined to adopt a rule extending the automatic roaming 
obligation to include non-interconnected services, such as wireless 
broadband Internet access services.
    38. In response to the 2007 Report and Order, the Commission 
received five petitions for reconsideration, four oppositions to the 
petitions for reconsideration, five replies to the oppositions, and 
three comments in support of the petitions for reconsideration. In the 
petitions for reconsideration, the petitioners request that the 
Commission reconsider the determination relating to the home roaming 
exclusion. Specifically, petitioners ask the Commission to reconsider 
its ruling that host carriers are not required to provide automatic 
roaming in any areas where the requesting carrier holds a wireless 
license or leases spectrum, and to eliminate the home roaming 
exclusion. All five petitioners challenge the Commission's policy 
rationale for

[[Page 22270]]

adopting the home roaming exclusion. The petitioners are primarily 
concerned with obtaining automatic roaming services for their home 
markets from a would-be host CMRS carrier, and are also concerned that 
newly acquired AWS-1 and 700 MHz spectrum may be encumbered, and 
therefore not capable of being used. With regard to AWS-1 and 700 MHz 
spectrum, petitioners argue that it should not be considered part of 
their ``home market'' for purposes of application of the home roaming 
exclusion. Sprint Nextel also requests that the Commission reconsider 
the decision to extend automatic roaming obligations to push-to-talk 
(PTT). In addition, SpectrumCo asks the Commission to reconsider its 
decision to limit the automatic roaming obligation only to services 
that use the public switched network.
    39. In the Order on Reconsideration, the Commission eliminates the 
home roaming exclusion adopted in 2007. Instead, the Commission will 
treat requests for automatic roaming in home markets under the same 
framework as other requests for automatic roaming. Thus, the Commission 
will generally presume that such a request is reasonable in the first 
instance if the requesting CMRS carrier's network is technologically 
compatible with the would-be host carrier's network, and the Commission 
will require that a CMRS carrier receiving a reasonable request to 
provide automatic roaming to the requesting carrier on reasonable and 
not unreasonably discriminatory terms and conditions. This presumption 
of reasonableness is rebuttable, and parties may choose to bring 
roaming disputes to the Commission for resolution. With respect to 
Sprint Nextel's request that the Commission reconsider its decision to 
extend automatic roaming obligations to push-to-talk, the Commission 
denies the request and finds that Sprint Nextel has failed to 
demonstrate sufficient grounds for revisiting the determination. The 
Commission addresses the issues raised in SpectrumCo's petition for 
reconsideration in the Second FNPRM.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA or FRFA

    40. The Commission received no filings directly in response to the 
previous IRFA or FRFA.

C. Description and Estimate of the Number of Small Entities To Which 
the Order on Reconsideration Will Apply

    41. The RFA directs the Commission to provide a description of, 
and, where feasible, an estimate of, the number of small entities that 
may be affected by the rules adopted herein. 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).
    42. The Commission has included small incumbent local exchange 
carriers in this present RFA analysis. As noted above, a ``small 
business'' under the RFA is one that, inter alia, meets the pertinent 
small business size standard (e.g., a telephone communications business 
having 1,500 or fewer employees), and ``is not dominant in its field of 
operation.'' The SBA's Office of Advocacy contends that, for RFA 
purposes, small incumbent local exchange carriers are not dominant in 
their field of operation because any such dominance is not ``national'' 
in scope. The Commission has therefore included small incumbent local 
exchange carriers in this RFA analysis, although the Commission 
emphasizes that this RFA action has no effect on Commission analyses 
and determinations in other, non-RFA contexts.
    43. Nationwide, there are a total of approximately 29.6 million 
small businesses, according to the SBA. A ``small organization'' is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' Nationwide, as of 
2002, there were approximately 1.6 million small organizations. The 
term ``small governmental jurisdiction'' is defined generally as 
``governments of cities, towns, townships, villages, school districts, 
or special districts, with a population of less than fifty thousand.'' 
Census Bureau data for 2002 indicate that there were 87,525 local 
governmental jurisdictions in the United States. The Commission 
estimates that, of this total, 84,377 entities were ``small 
governmental jurisdictions.'' Thus, the Commission estimates that most 
governmental jurisdictions are small. Nationwide, there are a total of 
approximately 29.6 million small businesses, according to the SBA.
    44. Wireless Service Providers. The SBA has developed a small 
business size standard for wireless firms within the new economic 
census category of ``Wireless Telecommunications Carriers (except 
satellite).'' Under this new category, the SBA deems a wireless 
business to be small if it has 1,500 or fewer employees. The data the 
Commission presents on the number of small entities is based on the 
information gathered in conjunction with the prior two broad economic 
census categories of ``Paging'' and ``Cellular and Other Wireless 
Telecommunications''--both of the small business size standards in 
effect prior to the adoption of the new size standard by the SBA in 
2008. Since no new data has been acquired since the adoption of the new 
size standard, the Commission provides the only data it has which is 
based on data collected before the new size standard went into effect. 
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.
    45. 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. 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.
    46. 700 MHz Guard Bands Licenses. In the 700 MHz Guard Bands Order, 
the Commission adopted size standards for ``small businesses'' and 
``very small

[[Page 22271]]

businesses'' for purposes of determining their eligibility for special 
provisions such as bidding credits and installment payments. 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. 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. SBA approval of 
these definitions is not required. In 2000, the Commission conducted an 
auction of 52 Major Economic Area (``MEA'') licenses. 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 and closed in 
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.
    47. 700 MHz Band Commercial Licenses. There is 80 megahertz of non-
Guard Band spectrum in the 700 MHz Band that is designated for 
commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands. With 
one exception, the Commission adopted criteria for defining two groups 
of small businesses for purposes of determining their eligibility for 
bidding credits at auction. These two categories are: (1) ``Small 
business,'' which is defined as an entity that has attributed average 
annual gross revenues that do not exceed $40 million during the 
preceding three years; and (2) ``very small business,'' which is 
defined as an entity with attributed average annual gross revenues that 
do not exceed $15 million for the preceding three years. In Block C of 
the Lower 700 MHz Band (710-716 MHz and 740-746 MHz), which was 
licensed on the basis of 734 Cellular Market Areas, the Commission 
adopted a third criterion for determining eligibility for bidding 
credits: An ``entrepreneur,'' which is defined as an entity that, 
together with its affiliates and controlling principals, has average 
gross revenues that are not more than $3 million for the preceding 
three years. The SBA has approved these small size standards.
    48. An auction of 740 licenses for Blocks C (710-716 MHz and 740-
746 MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on 
August 27, 2002, and closed on September 18, 2002. Of the 740 licenses 
available for auction, 484 licenses were sold to 102 winning bidders. 
Seventy-two of the winning bidders claimed small business, very small 
business, or entrepreneur status and won a total of 329 licenses. A 
second auction commenced on May 28, 2003, and closed on June 13, 2003, 
and included 256 licenses: Five EAG licenses and 251 CMA licenses. 
Seventeen winning bidders claimed small or very small business status 
and won 60 licenses, and nine winning bidders claimed entrepreneur 
status and won 154 licenses.
    49. The auction for the remaining 62 megahertz of commercial 
spectrum began on January 24, 2008. A total of 214 applicants were 
found to be qualified bidders, of which 38 applicants claimed status as 
small businesses and 81 applicants claimed status as very small 
businesses. The auction concluded on March 18, 2008 with 101 bidders 
winning 1090 licenses. The provisionally winning bids for the A, B, C, 
and E Block licenses exceeded the aggregate reserve prices for those 
blocks. The provisionally winning bid for the D Block license, however, 
did not meet the applicable reserve price and, thus, did not become a 
winning bid.
    50. Government Transfer Bands. The Commission adopted small 
business size standards for the unpaired 1390-1392 MHz, 1670-1675 MHz, 
and the paired 1392-1395 MHz and 1432-1435 MHz bands. Specifically, 
with respect to these bands, the Commission defined an entity with 
average annual gross revenues for the three preceding years not 
exceeding $40 million as a ``small business,'' and an entity with 
average annual gross revenues for the three preceding years not 
exceeding $15 million as a ``very small business.'' SBA has approved 
these small business size standards for the aforementioned bands. 
Correspondingly, the Commission adopted a bidding credit of 15 percent 
for ``small businesses'' and a bidding credit of 25 percent for ``very 
small businesses.'' This bidding credit structure was found to have 
been consistent with the Commission's schedule of bidding credits, 
which may be found at Section 1.2110(f)(2) of the Commission's rules. 
The Commission found that these two definitions will provide a variety 
of businesses seeking to provide a variety of services with 
opportunities to participate in the auction of licenses for this 
spectrum and will afford such licensees, who may have varying capital 
costs, substantial flexibility for the provision of services. The 
Commission noted that it had long recognized that bidding preferences 
for qualifying bidders provide such bidders with an opportunity to 
compete successfully against large, well-financed entities. The 
Commission also noted that it had found that the use of tiered or 
graduated small business definitions is useful in furthering its 
mandate under Section 309(j) to promote opportunities for and 
disseminate licenses to a wide variety of applicants. An auction for 
one license in the 1670-1674 MHz band commenced on April 30, 2003 and 
closed the same day. One license was awarded.
    51. Advanced Wireless Services. In 2008, the Commission conducted 
the auction of Advanced Wireless Services (``AWS'') licenses. This 
auction, which as designated as Auction 78, offered 35 licenses in the 
AWS 1710-1755 MHz and 2110-2155 MHz bands (``AWS-1''). The AWS-1 
licenses were licenses for which there were no winning bids in Auction 
66. That same year, the Commission completed Auction 78. A bidder with 
attributed average annual gross revenues that exceeded $15 million and 
did not exceed $40 million for the preceding three years (``small 
business'') received a 15 percent discount on its winning bid. A bidder 
with attributed average annual gross revenues that did not exceed $15 
million for the preceding three years (``very small business'') 
received a 25 percent discount on its winning bid. A bidder that had 
combined total assets of less than $500 million and combined gross 
revenues of less than $125 million in each of the last two years 
qualified for entrepreneur status. Four winning bidders that identified 
themselves as very small businesses won 17 licenses. Three of the 
winning bidders that identified themselves as a small business won five 
licenses. Additionally, one other winning bidder that qualified for 
entrepreneur status won 2 licenses.
    52. Cellular Licensees. The SBA has developed a small business size 
standard for wireless firms within the new economic census category of 
''Wireless Telecommunications Carriers (except satellite).'' Under this 
new category, the SBA deems a wireless business to be small if it has 
1,500 or fewer employees. The data the Commission presents on the 
number of small entities is based on the information gathered in 
conjunction with the prior economic census category of ``Cellular and 
Other Wireless Telecommunications''--the small business size standard 
in effect prior to the adoption of the new size standard by the SBA in 
2008. Since no new data has been acquired after the adoption of the new 
size standard, the Commission provides the only data it has available 
which is based on data collected before the new size standard went into 
effect.

[[Page 22272]]

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.
    53. Broadband Personal Communications Service. The broadband 
Personal Communications Service (PCS) spectrum is divided into six 
frequency blocks