[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43977-43981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21797]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 20 and 22

[CC Docket No. 94-54; FCC 96-284]


Provision of Roaming Services by Commercial Mobile Radio Service 
Providers

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Federal Communications Commission adopts a Second Report 
and Order and Third Notice of Proposed Rulemaking regarding the 
offering of roaming services by commercial mobile radio service 
providers. The Third Notice of Proposed Rulemaking portion of this 
decision is summarized elsewhere in this edition of the Federal 
Register. The Second Report and Order expands the scope of the 
Commission's existing ``manual'' roaming rule. As a result of this 
action, cellular, broadband personal communications services and 
certain specialized mobile radio licensees must, as a condition of 
their licenses, provide service upon request to any individual roamer 
whose handset is technically capable of accessing their networks. This 
decision is needed to ensure that customers of all providers competing 
in the mass market for two-way, real-time, interconnected switched 
voice service have an equal opportunity to obtain manual roaming 
service if they are using technically compatible equipment, thus 
promoting competition.

EFFECTIVE DATE: October 28, 1996.

FOR FURTHER INFORMATION CONTACT: Jeffrey Steinberg, Wireless 
Telecommunications Bureau, (202) 418-1310.

SUPPLEMENTARY INFORMATION: This is a summary of the Second Report and 
Order (Second R&O) portion of the Commission's Second Report and Order 
and Third Notice of Proposed Rulemaking in CC Docket No. 94-54, FCC 96-
284, adopted June 27, 1996, and released August 13, 1996. The summary 
of the Third Notice of Proposed Rulemaking portion of this decision may 
be found elsewhere in this edition of the Federal Register. The 
complete text of this Second R&O is available for inspection and 
copying during normal business hours in the FCC Reference Center (Room 
239), 1919 M Street, NW., Washington, DC, and also may be purchased 
from the Commission's copy contractor, International Transcription 
Service, (202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC, 
20037.

Synopsis of the Second Report and Order

    1. In this Second R&O, the Commission extends its existing rule 
under which cellular licensees are required to provide manual roaming 
service upon request to subscribers in good standing of any cellular 
carrier.
    2. ``Roaming'' occurs when the subscriber of one commercial mobile 
radio service (CMRS) provider utilizes the facilities of another CMRS 
provider with which the subscriber has no direct pre-existing service 
or financial relationship to place an outgoing call, to receive an 
incoming call, or to continue an in-progress call. Typically, although 
not always, roaming occurs when the subscriber is physically located 
outside the service area of the provider to which he or she subscribes. 
Under Sec. 22.901 of the Commission's rules, cellular system licensees 
``must provide cellular mobile radiotelephone service upon request to 
all cellular subscribers in good standing, including roamers, while 
such subscribers are located within any portion of the authorized 
cellular geographic service area * * * where facilities have been 
constructed and service to subscribers has commenced.''
    3. The Commission initiated this proceeding in a Notice of Proposed 
Rulemaking and Notice of Inquiry, 59 FR 35664, July 13, 1994, which 
requested comment regarding whether the obligation to permit roaming 
should be extended to all CMRS, what regulatory standards are 
appropriate to promote roaming, and what technical issues or 
requirements are implicated. In the Second Notice of Proposed 
Rulemaking (Second NPRM), 60 FR 20949, April 28, 1995, the Commission 
tentatively concluded that roaming service is important to the 
development of a seamless CMRS ``network of networks.'' The Second NPRM 
also tentatively concluded that uncertainties concerning the 
technological development of non-cellular CMRS and the likelihood that 
market forces would adequately promote the availability of roaming 
counseled regulatory caution. Therefore, the Commission proposed, in 
lieu of a rule, to monitor the development of roaming service and to 
intercede as appropriate. In addition,

[[Page 43978]]

the Commission requested comment on several other issues related to 
roaming, including the technical feasibility of cross-service roaming, 
the necessity of direct physical interconnection to facilitate roaming, 
the necessity of access to subscriber databases and any privacy or 
proprietary issues raised, and the technical and contractual 
arrangements that are currently used to provide roaming in the cellular 
service.
    4. At the outset, the Commission notes that Sections 201(b) and 
202(a) of the Communications Act apply to CMRS providers and govern the 
provision of common carrier communications services.1 The 
Commission agrees with those commenters that argue that roaming is a 
common carrier service because it gives end users access to a foreign 
network in order to communicate messages of their own choosing. The 
Commission also notes that it has authority to impose a roaming 
requirement in the public interest pursuant to its license conditioning 
authority under sections 303(r) and 309 of the Communications Act.
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    \1\ See 47 U.S.C. 332(c)(1) (CMRS providers are subject to 
duties of common carriers, including Sections 201 and 202).
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    5. The record submitted in response to the Second NPRM demonstrates 
that roaming capability is widely available to cellular subscribers, is 
highly valued by those subscribers, and is one of the industry's 
fastest growing sources of revenue. Thus, roaming capability may be a 
key competitive consideration in the wireless marketplace, and newer 
entrants may be at a competitive disadvantage vis-a-vis incumbent 
wireless carriers if their subscribers have no ability to roam on other 
networks. Having said that, the Commission recognizes that roaming 
regulation may impose significant costs and burdens on CMRS providers 
and that it should narrowly tailor its actions to avoid placing an 
undue burden on such providers.
    6. Based on comments in the record and the experience of the first 
broadband PCS licensee to begin service, the Commission concludes that 
the public interest will be served by extending its existing manual 
roaming rule, which is part of the Commission's cellular service 
rules,2 to obligate all CMRS licensees competing in the mass 
market for real-time, two-way voice services and to protect the 
subscribers of all carriers offering such services. That group consists 
of cellular, broadband PCS and covered SMR providers. These ``covered 
SMR providers'' include two classes of SMR licensees. The first 
consists of 800 MHz and 900 MHz SMR licensees that hold geographic area 
licenses. The second covers incumbent wide area SMR licensees, defined 
as licensees who have obtained extended implementation authorizations 
in the 800 MHz or 900 MHz SMR service, either by waiver or under 
Sec. 90.629 of the Commission's rules. Within each of these classes, 
``covered SMR providers'' includes only licensees that offer real-time, 
two-way switched voice service that is interconnected with the public 
switched network, either on a stand-alone basis or packaged with other 
telecommunications services. This is the same group of SMR licensees to 
which the Commission applied its recently adopted rule governing 
restrictions on resale.
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    \2\ See 47 CFR 22.901.
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    7. Under the rule adopted in this Second R&O, cellular, broadband 
PCS, and covered SMR licensees are required to provide manual roaming 
to any subscriber of any of these services who is using a handset that 
is technically capable of accessing the licensee's system. The rule 
does not require licensees to modify their systems in order to provide 
service to any end user. To avoid any uncertainty, this decision 
clarifies that any subscriber to any covered service with a technically 
cellular-compatible handset has the same right as a cellular subscriber 
to manually roam on cellular systems. Furthermore, the existing rule is 
extended to obligate broadband PCS and covered SMR, as well as 
cellular, licensees. Because this Second R&O furthers the public 
interest by facilitating the widespread availability of roaming, the 
Commission makes compliance with this rule a condition of cellular, 
broadband PCS and covered SMR licenses under sections 303(r) and 309 of 
the Communications Act.
    8. By contrast, the record does not establish that ubiquitous 
roaming capability is important to the competitive success or utility 
of mobile services other than those offered by cellular, broadband PCS 
and covered SMR providers. The Commission therefore concludes that its 
action shall be limited to such licensees. In particular, because they 
do not compete substantially with cellular and broadband PCS providers, 
local SMR licensees offering mainly dispatch services to specialized 
customers in a non-cellular system configuration, as well as licensees 
offering only data, one-way, or stored voice services on an 
interconnected basis, are not covered by the roaming rule. Of course, 
any SMR provider that is not interconnected to the public switched 
network does not offer CMRS, and therefore is not subject to the 
roaming rule. Allegations that particular practices by non-covered CMRS 
providers are unjust, unreasonable or otherwise in violation of the 
Communications Act would be grounds for complaint under section 208 of 
that Act.

Final Regulatory Flexibility Analysis

    9. As required by section 603 of the Regulatory Flexibility Act, 5 
USC 603 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Second NPRM in this proceeding. The Commission 
sought written public comments on the proposals in the Second NPRM, 
including on the IRFA. The Commission's Final Regulatory Flexibility 
Analysis (FRFA) in this Second R&O conforms to the RFA, as amended by 
the Contract With America Advancement Act of 1996, Pub. L. 104-121, 110 
Stat. 847 (1996) (CWAAA).3
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    \3\ Subtitle II of the CWAAA is the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA), codified at 5 USC 601 et 
seq.
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I. Need for and Purpose of this Action

    10. In this decision, the Commission extends its existing rule 
under which cellular licensees are required to provide manual roaming 
service upon request to subscribers in good standing of any cellular 
carrier. Under the rule adopted in this decision, cellular, broadband 
personal communications services (PCS), and certain specialized mobile 
radio (SMR) licensees must provide manual roaming service upon request 
to subscribers in good standing of all such carriers, provided the 
subscriber is using a handset that is technically capable of accessing 
the licensee's system. This action will ensure that customers of all 
providers competing in the mass market for two-way, real-time, 
interconnected switched voice service have an equal opportunity to 
obtain manual roaming service, if they are using technically compatible 
equipment. In this way, the rule will promote the development of 
competition by ensuring that newer entrants to the market, as well as 
competitors without extensive affiliations, are not competitively 
disadvantaged by the inability of their subscribers to roam.

II. Summary of Issues Raised by the Public Comments in Response to the 
Initial Regulatory Flexibility Analysis

    11. No comments were filed in direct response to the IRFA. In 
general comments on the Second NPRM, however, several commenters raised 
issues that might affect small entities. Some of these commenters 
argued that

[[Page 43979]]

the Commission should adopt a roaming rule in order to protect the 
ability of carriers without a nationwide footprint or extensive 
affiliations to compete. Other commenters, however, expressed concern 
that compliance with a requirement to offer roaming could be 
technically infeasible or unduly costly under some circumstances. In 
particular, several commenters urged the Commission not to require 
carriers to adopt particular technologies or modify their networks in 
order to facilitate roaming. Some commenters also argued that a roaming 
requirement could expose carriers to financial losses due to fraud. Two 
alliances of rural cellular carriers argued that, in drafting any 
roaming rule, the Commission should consider the technical obstacles 
faced by providers that do not have SS7 capability, as well as rural 
cellular licensees' alleged lack of market power.

III. Description and Estimate of the Small Entities Subject to the 
Rules

    12. The rule adopted in this Second R&O will apply to cellular, 
broadband PCS, and geographic area 800 MHz and 900 MHz SMR licensees, 
including licensees who have obtained extended implementation 
authorizations in the 800 MHz or 900 MHz SMR services, either by waiver 
or under Sec. 90.629 of the Commission's rules. However, the rule will 
apply to SMR licensees only if they offer real-time, two-way voice 
service that is interconnected with the public switched network.
A. Estimates for Cellular Licensees
    13. The Commission has not developed a definition of small entities 
applicable to cellular licensees. Therefore, the applicable definition 
of small entity is the definition under the Small Business 
Administration (SBA) rules applicable to radiotelephone companies. This 
definition provides that a small entity is a radiotelephone company 
employing fewer than 1,500 persons.4 Since the Regulatory 
Flexibility Act amendments were not in effect until the record in this 
proceeding was closed, the Commission was unable to request information 
regarding the number of small cellular businesses and is unable at this 
time to determine the precise number of cellular firms which are small 
businesses.
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    \4\ 13 CFR 121.201, Standard Industrial Classification (SIC) 
Code 4812.
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    14. The size data provided by the SBA does not enable the 
Commission to make a meaningful estimate of the number of cellular 
providers which are small entities because it combines all 
radiotelephone companies with 500 or more employees.5 The 
Commission therefore used the 1992 Census of Transportation, 
Communications, and Utilities, conducted by the Bureau of the Census, 
which is the most recent information available. This document shows 
that only 12 radiotelephone firms out of a total of 1,178 such firms 
which operated during 1992 had 1,000 or more employees.6 
Therefore, even if all 12 of these firms were cellular telephone 
companies, nearly all cellular carriers were small businesses under the 
SBA's definition. The Commission assumes, for purposes of its 
evaluations and conclusions in this FRFA, that all of the current 
cellular licensees are small entities, as that term is defined by the 
SBA. Although there are 1,758 cellular licenses, the Commission does 
not know the number of cellular licensees, since a cellular licensee 
may own several licenses.
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    \5\ U.S. Small Business Administration 1992 Economic Census 
Employment Report, Bureau of the Census, U.S. Department of 
Commerce, SIC Code 4812 (radiotelephone communications industry data 
adopted by the SBA Office of Advocacy).
    \6\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992 
Census of Transportation, Communications, and Utilities, UC92-S-1, 
Subject Series, Establishment and Firm Size, Table 5, Employment 
Size of Firms: 1992, SIC Code 4812 (issued May 1995).
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    15. Two alliances of rural cellular licensees filed comments in 
which they argued that a roaming rule may have an especially large 
impact on rural licensees. In its comments, the Rural Cellular 
Coalition states that it has 12 members which serve licensed cellular 
areas encompassing approximately 3 million people; the Rural Cellular 
Association states that its members serve areas with a cumulative 
population of more than 6 million. The Commission does not have 
information, however, sufficient to support a meaningful estimate 
regarding the total number of rural licensees, nor does it have 
specific information regarding how many rural cellular licensees are 
small entities. For purposes of this FRFA, the Commission assumes that 
all rural cellular licensees are small entities, as that term is 
defined by the SBA.
B. Estimates for Broadband PCS Licensees
    16. The broadband PCS spectrum is divided into six frequency blocks 
designated A through F. Pursuant to 47 CFR 24.720(b), the Commission 
has defined ``small entity'' in the auctions for Blocks C and F as a 
firm that had average gross revenues of not more than $40 million in 
the three previous calendar years. This regulation defining ``small 
entity'' in the context of broadband PCS auctions has been approved by 
the SBA.7
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    \7\ See Implementation of section 309(j) of the Communications 
Act--Competitive Bidding, PP Docket No. 93-253, Fifth Report and 
Order, 59 FR 37566 (July 22, 1994).
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    17. The Commission has auctioned broadband PCS licenses in Blocks 
A, B, and C. The Commission does not have sufficient data to determine 
how many small businesses bid successfully for licenses in Blocks A and 
B. As of now, there are 90 non-defaulting winning bidders that qualify 
as small entities in the Block C auctions. Based on this information, 
the Commission concludes that the number of broadband PCS licensees 
affected by the rule adopted in this Second R&O includes the 90 winning 
bidders that qualify as small entities in the Block C broadband PCS 
auctions.
    18. At present, no licenses have been awarded for Blocks D, E, and 
F of broadband PCS spectrum. Therefore, there are no small businesses 
currently providing these services. However, a total of 1,479 licenses 
will be awarded in the D, E, and F Block broadband PCS auctions, which 
are scheduled to begin on August 26, 1996. Eligibility for the 493 F 
Block licenses is limited to entrepreneurs with average gross revenues 
of not more than $125 million. However, the Commission cannot estimate 
how many of these licenses will be won by small entities, nor how many 
small entities will win D and E Block licenses. Given the facts that 
nearly all radiotelephone companies have fewer than 1,000 employees and 
that no reliable estimate of the number of prospective D, E, and F 
Block licensees can be made, the Commission assumes, for purposes of 
its evaluations and conclusions in this FRFA, that all of the licenses 
will be awarded to small entities, as that term is defined by the SBA.
C. Estimates for SMR Licensees
    19. Pursuant to 47 CFR 90.814(b)(1), the Commission has defined 
``small entity'' in auctions for geographic area 800 MHz and 900 MHz 
SMR licenses as a firm that had average gross revenues of not more than 
$15 million in the three previous calendar years. This regulation 
defining ``small entity'' in the context of 800 MHz and 900 MHz SMR has 
been approved by the SBA.8
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    \8\ See Amendment of parts 2 and 90 of the Commission's rules to 
Provide for the Use of 200 Channels Outside the Designated Filing 
Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the 
Specialized Mobile Radio Pool, PR Docket No. 89-583, Second Order on 
Reconsideration and Seventh Report and Order, 60 FR 48913 (September 
21, 1995); Amendment of Part 90 of the Commission's Rules to 
Facilitate Future Development of SMR Systems in the 800 MHz 
Frequency Band, PR Docket No. 93-144, First Report and Order, Eighth 
Report and Order, and Second Further Notice of Proposed Rulemaking, 
61 FR 6212 (February 16, 1996).

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[[Page 43980]]

    20. The rule adopted in this Second R&O applies to SMR providers in 
the 800 MHz and 900 MHz bands that either hold geographic area licenses 
or have obtained extended implementation authorizations. The Commission 
does not know how many firms provide 800 MHz or 900 MHz geographic area 
SMR service pursuant to extended implementation authorizations, nor how 
many of these providers have annual revenues of less than $15 million. 
Since the Regulatory Flexibility Act amendments were not in effect 
until the record in this proceeding was closed, the Commission was 
unable to request information regarding the number of small businesses 
in this category. The Commission does know that one of these firms has 
over $15 million in revenues. The Commission assumes, for purposes of 
its evaluations and conclusions in this FRFA, that all of the remaining 
existing extended implementation authorizations are held by small 
entities, as that term is defined by the SBA.
    21. The Commission recently held auctions for geographic area 
licenses in the 900 MHz SMR band. There were 60 winning bidders who 
qualified as small entities in the 900 MHz auction. Based on this 
information, the Commission concludes that the number of geographic 
area SMR licensees affected by the rule adopted in this Second R&O 
includes these 60 small entities.
    22. No auctions have been held for 800 MHz geographic area SMR 
licenses. Therefore, no small entities currently hold these licenses. A 
total of 525 licenses will be awarded for the upper 200 channels in the 
800 MHz geographic area SMR auction. However, the Commission has not 
yet determined how many licenses will be awarded for the lower 230 
channels in the 800 MHz geographic area SMR auction. There is no basis 
to estimate, moreover, how many small entities within the SBA's 
definition will win these licenses. Given the facts that nearly all 
radiotelephone companies have fewer than 1,000 employees and that no 
reliable estimate of the number of prospective 800 MHz licensees can be 
made, the Commission assumes, for purposes of its evaluations and 
conclusions in this FRFA, that all of the licenses will be awarded to 
small entities, as that term is defined by the SBA.

IV. Summary of Projected Reporting, Recordkeeping and Other Compliance 
Requirements

    23. The rule adopted in this Second R&O imposes no reporting or 
recordkeeping requirements. The only compliance requirement is that 
licensees subject to the rule (i.e., cellular licensees, broadband PCS 
licensees, and geographic area 800 MHz and 900 MHz SMR licensees that 
offer real-time, two-way, interconnected switched voice service) must 
provide manual roaming service upon request to subscribers in good 
standing of covered services who are using technically compatible 
equipment.

V. Steps Taken to Minimize the Economic Impact on Small Entities

    24. The rule adopted in this Second R&O only requires certain CMRS 
licensees to provide manual roaming service to eligible subscribers 
upon request. The Commission determines on the present record not to 
promulgate any rule governing roaming agreements between carriers, but 
instead to request further comment regarding the need for any such rule 
and the costs that it would impose. Thus, the Commission in this Second 
R&O avoids potential burdens that a rule governing intercarrier roaming 
agreements might impose on small entities, including questions 
regarding the feasibility and cost of offering automatic roaming under 
certain circumstances, the administrative costs of entering into 
roaming agreements, and possible exposure to fraud. Furthermore, the 
rule requires covered licensees to provide service only to subscribers 
who are using equipment that is technically capable of accessing their 
systems. The rule therefore does not require carriers to adopt 
particular technologies or to modify their networks to accommodate 
roamers using different technologies. Because the rule neither requires 
carriers to enter into roaming agreements nor impacts their 
technological choices, it does not implicate the concerns raised by 
rural carriers.
    25. The Commission also determines not to apply its roaming rule to 
CMRS providers other than cellular, broadband PCS and certain SMR 
licensees. Many of the providers that are thereby excluded from the 
rule are small entities, including paging, narrowband PCS, air-ground, 
public coast service, and non-covered SMR providers. In addition, the 
Commission requests comment on whether it should sunset the rule 
adopted herein five years after it awards the last group of initial 
licenses for currently allotted broadband PCS spectrum.
    26. Finally, the Commission believes that the rule adopted in this 
Second R&O will benefit certain small entities by ensuring that 
subscribers of providers that do not have a nationwide presence or 
affiliations will have the same right to obtain roaming service as 
subscribers to competing larger carriers, provided they are using 
technically compatible equipment.

VI. Significant Alternatives Considered and Rejected

    27. The Commission considered and rejected the alternative of not 
extending its existing manual roaming rule beyond cellular licensees 
and cellular subscribers. Instead, the Commission concluded that the 
rule should extend to broadband PCS and covered SMR services in order 
to protect smaller and newer providers of these services from likely 
competitive disadvantage. At the same time, the Commission rejected the 
alternative of extending the rule to other CMRS services because the 
record did not establish that ubiquitous roaming capability is 
important to the competitive success or utility of these services. The 
Commission also rejected the alternative of promulgating a rule 
governing intercarrier roaming agreements in this Second R&O because 
the record did not sufficiently illuminate the costs and benefits of 
any such rule. Finally, the Commission rejected any alternative that 
would require carriers to adopt particular technologies or modify their 
physical networks.

VII. Report to Congress

    28. The Commission shall send a copy of this Final Regulatory 
Flexibility Analysis, along with this Second Report and Order, in a 
report to Congress pursuant to SBREFA, 5 U.S.C. 801(a)(1)(A).

Ordering Clause

    29. Accordingly, it is ordered that the rule amendments appearing 
below are adopted and shall be effective October 28, 1996.

List of Subjects

47 CFR Part 20

    Communications common carriers

47 CFR Part 22

    Communications common carriers

[[Page 43981]]

Federal Communications Commission.

William F. Caton,
Acting Secretary.

Rule Changes

    Parts 20 and 22 of Chapter I of Title 47 of the Code of Federal 
Regulations are amended as follows:

PART 20--COMMERCIAL MOBILE RADIO SERVICES

    1. The authority citation for part 20 continues to read as follows:

    Authority: Sec. 4, 303, and 332, 48 Stat. 1066, 1092, as 
amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted.

    2. Section 20.12 is amended by revising the section heading and 
adding new paragraph (c) to read as follows:


Sec. 20.12  Resale and roaming.

* * * * *
    (c) Roaming. Each licensee subject to this section must provide 
mobile radio service upon request to all subscribers in good standing 
to the services of any carrier subject to this Section, including 
roamers, while such subscribers are located within any portion of the 
licensee's licensed service area where facilities have been constructed 
and service to subscribers has commenced, if such subscribers are using 
mobile equipment that is technically compatible with the licensee's 
base stations.

PART 22--PUBLIC MOBILE SERVICES

    1. The authority citation for part 22 continues to read as follows:

    Authority: Sec. 4, 303, and 332, 48 Stat. 1066, 1082, as 
amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted.

    2. Section 22.901 is amended by revising the introductory paragraph 
to read as follows:


Sec. 22.901  Cellular service requirements and limitations.

    Cellular system licensees must provide cellular mobile 
radiotelephone service upon request to subscribers in good standing, 
including roamers, as provided in Sec. 20.12 of this chapter. A 
cellular system licensee may refuse or terminate service, however, 
subject to any applicable requirements for timely notification, to 
anyone who operates a cellular telephone in an airborne aircraft in 
violation of Sec. 22.925 or otherwise fails to cooperate with the 
licensee in exercising operational control over mobile stations 
pursuant to Sec. 22.927.
* * * * *

[FR Doc. 96-21797 Filed 8-26-96; 8:45 am]
BILLING CODE 6712-01-P