[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