[Federal Register Volume 72, Number 168 (Thursday, August 30, 2007)]
[Rules and Regulations]
[Pages 50064-50074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17122]



[[Page 50064]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 20

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


Reexamination of Roaming Obligations of Commercial Mobile Radio 
Service Providers

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission (FCC) 
clarifies by final rule that automatic roaming is a common carrier 
obligation for commercial mobile radio service (CMRS) carriers, 
requiring them to provide roaming services to other carriers upon 
reasonable request and on a just, reasonable, and non-discriminatory 
basis.

DATES: This rule is effective October 29, 2007.

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

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

Final Paperwork Reduction Act of 1995 Analysis

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

Synopsis

    1. In this Report and Order, the Commission finds that automatic 
roaming is a common carrier obligation pursuant to Sections 201 and 202 
of the Communications Act, and discusses the scope of the automatic 
roaming obligation for commercial mobile radio service (CMRS) carriers. 
The Commission also declines to regulate the automatic roaming rates 
and addresses other issues raised by commenters in the record, 
including a request for ``most favored'' roaming partner rates for Tier 
IV CMRS carriers, in-market or home roaming issues, access to non-
interconnected features and enhanced digital networks, and public 
filing of roaming rates. Finally, the Commission codifies the automatic 
roaming obligations into a rule, imposing an affirmative obligation to 
provide automatic roaming on CMRS carriers under certain conditions, 
denies the petition for investigation pursuant to Section 403 of the 
Act, and declines to sunset the existing manual roaming rule at this 
time.
    2. The Commission believes its findings and clarifications in this 
Report and Order with respect to CMRS providers' obligations regarding 
roaming services serve the public interest and safeguard wireless 
consumers' reasonable expectations of receiving seamless nationwide 
commercial mobile telephony services through roaming.

A. Automatic Roaming Obligations

1. Automatic Roaming
    3. The Commission clarifies that automatic roaming is a common 
carrier service, subject to the protections outlined in Sections 201 
and 202 of the Communications Act. If a CMRS carrier receives a 
reasonable request for automatic roaming, pursuant to Section 
332(c)(1)(B) and Section 201(a), it is desirable and serves the public 
interest for that CMRS carrier to provide automatic roaming service on 
reasonable and non-discriminatory terms and conditions. Services that 
are covered by the automatic roaming obligation are limited to real-
time, two-way switched voice or data services, provided by CMRS 
carriers, that are interconnected with the public switched network and 
utilize an in-network switching facility that enables the provider to 
reuse frequencies and accomplish seamless hand-offs of subscriber 
calls. These findings are consistent with the Commission's previous 
determinations.
    4. Roaming is a common carrier service, because roaming capability 
gives end users access to a foreign network in order to communicate 
messages of their own choosing, as previously determined in CC Docket 
No. 94-54, published at 61 FR 44026, August 27, 1996.\1\ In finding 
that roaming is a common carrier service, the Commission noted the 
contrast between roaming and services such as billing and collection 
offered by local exchange carriers (LECs) and interexchange carriers 
(IXCs), which are not common carriage because they do ``not allow 
customers of the service * * * to communicate or transmit intelligence 
of their own design and choosing,'' and because they can be offered by 
non-communications entities such as credit card companies. The 
Commission also found that roaming satisfies all the statutory elements 
of commercial mobile radio service, and ``is thus a common carrier 
service, because it is (1) an interconnected mobile service (2) offered 
for profit (3) in such a manner as to be available to a substantial 
portion of the public.'' There are two forms of roaming--manual and 
automatic. The Commission finds that both forms of roaming are common 
carrier services because both forms of roaming capability give end 
users access to a foreign network in order to communicate messages of 
their own choosing.
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    \1\ See Interconnection and Resale Obligations Pertaining to 
Commercial Mobile Radio Services, CC Docket No. 94-54, Second Report 
and Order and Third Notice of Proposed Rulemaking, 11 FCC Rcd 9462, 
9468-69 Para. 10 (1996) (``Interconnection and Resale Obligations 
Second Report and Order'' and ``Interconnection and Resale 
Obligations Third NPRM,'' respectively).
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    5. Further, under Section 332 of the Communications Act, CMRS 
providers are subject to common carrier regulations. Section 
332(c)(1)(A) provides that a ``person engaged in the provision of a 
service that is a commercial mobile service shall, insofar as such 
person is engaged, be treated as a common carrier,'' and Subsection 
(c)(1)(B) states that, ``[u]pon reasonable request of any person 
providing commercial mobile service, the Commission shall order a 
common carrier to establish physical connections with such service 
pursuant to the provisions of Section 201 of this Title.'' Like any 
other common carrier service offering, if a CMRS provider offers 
automatic roaming, it triggers its common carrier obligations with 
respect to the provisioning of that service under the Communications 
Act. The Commission determines that, if a CMRS carrier receives a 
reasonable request for automatic roaming, pursuant to Section 
332(c)(1)(B) and Section 201(a), it is desirable and necessary to serve 
the

[[Page 50065]]

public interest for that CMRS carrier to provide automatic roaming 
service on reasonable and non-discriminatory terms and conditions.
    6. Additionally, the Commission determines that a reasonable 
request for automatic roaming will be limited to real-time, two-way 
switched voice or data services, provided by CMRS carriers, that are 
interconnected with the public switched network and utilize an in-
network switching facility that enables the provider to reuse 
frequencies and accomplish seamless hand-offs of subscriber calls. This 
ensures that all CMRS providers competing in the mass market for real-
time, two-way voice and data services are similarly obligated to 
provide automatic roaming services, thereby equally benefiting all 
subscribers of mobile telephony services who seek to roam seamlessly 
over CMRS networks. The Commission also concludes, as it has in prior 
proceedings, that an important indicator of a provider's ability to 
compete with other CMRS providers is whether the provider's system has 
``in-network'' switching capability. In-network switching facilities 
accommodate the reuse of frequencies in different portions of the same 
service area, thus enabling any CMRS provider to offer interconnected 
service to a larger group of customers and compete directly with other 
CMRS providers in the mass consumer market.
    7. Complaint Procedures. Based on its finding that automatic 
roaming is a common carrier service, the Commission determines that the 
provisioning of automatic roaming service is subject to Section 208 
which provides that complaints may be filed with the Commission against 
common carriers subject to the Communications Act. There has been some 
confusion regarding whether the provisioning of automatic roaming 
services is subject to the requirements of Section 208. Given the fact-
specific nature of the roaming issues that have come to light during 
this proceeding and several merger proceedings, the Commission 
concludes that many disputes involving automatic roaming services would 
be best resolved through an adjudicatory process. In deciding roaming 
complaints, the Commission will consider whether a request is 
reasonable or whether the activity complained of is unjust and 
unreasonable based on the totality of the circumstances of the case. 
When roaming-related complaints are filed, the Commission intends to 
address them expeditiously on a case-by-case basis.
    8. Further, the Commission notes that the Accelerated Docket 
procedure, including pre-complaint mediation, is available to roaming 
complaints. Several commenters--including parties both supporting and 
opposing adoption of an automatic roaming rule--requested use of the 
Commission's Accelerated Docket procedures to resolve roaming 
complaints. Although all roaming complaints will not automatically be 
placed on the Accelerated Docket, an affected carrier can seek 
consideration of its complaint under the Commission's Accelerated 
Docket rules and procedures where appropriate.
    9. Reasonableness of Automatic Roaming Requests. In order to 
provide some guidance as to the reasonableness of automatic roaming 
requests under Sections 201(b) and 202(a), the Commission also 
establishes several rebuttable presumptions with respect to requests 
for automatic roaming and the would-be host carriers' response. The 
Commission will presume a request for automatic roaming to be 
reasonable, in the first instance, if the requesting CMRS carriers' 
network is technologically compatible and the roaming request is for 
areas outside of the requesting carrier's home market. As noted above, 
to be deemed reasonable, a request for automatic roaming may involve 
only those 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 the provider to reuse 
frequencies and accomplish seamless hand-offs of subscriber calls. When 
a presumptively reasonable automatic roaming request is made, a would-
be host CMRS carrier has a duty to respond to the request and avoid 
actions that unduly delay or stonewall the course of negotiations 
regarding that request. For example, following receipt of a 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.
    10. The presumptions and examples of reasonableness cited above are 
not exhaustive, but rather are intended to provide some guidance to 
parties that may be participating in a Section 208 complaint proceeding 
involving roaming services. CMRS carriers may argue that the Commission 
should consider other relevant factors in determining whether there is 
a violation of the automatic roaming obligations, based on the totality 
of the circumstances present in a particular case.
2. Determination Not to Impose Rate Regulation on Roaming Agreements
    11. The Commission declines to impose a price cap or any other form 
of rate regulation on the fees carriers pay each other when one 
carrier's customer roams on another carrier's network. In particular, 
the Commission is not persuaded that consumers would be harmed in the 
absence of a price cap or some other form of rate regulation. The 
Commission believes that the better course, as established in this 
Report and Order, is that the rates individual carriers pay for 
automatic roaming services be determined in the marketplace through 
negotiations between the carriers, subject to the statutory requirement 
that any rates charged be reasonable and non-discriminatory.
    12. The Commission finds that there is insufficient evidence to 
justify regulating the roaming rates of carriers, and that any harm to 
consumers in the absence of affirmative regulation in this regard is 
speculative. Moreover, with the clarifications it makes herein with 
respect to automatic roaming, the Commission finds that consumers are 
protected from being harmed by the level and structure of roaming rates 
negotiated between carriers. Absent a finding that the existing level 
and structure of roaming rates harm consumers, regulation of rates for 
automatic roaming service is not warranted.
    13. Because it is not persuaded that the existing level and 
structure of roaming rates negotiated between carriers harm consumers 
of mobile telephony services, the Commission does not need to address 
the argument that the state of competition in the intermediate product 
market is such as to warrant rate regulation.
    14. Based on the foregoing considerations, the Commission concludes 
that regulation of roaming rates is not warranted on economic grounds. 
In addition, however, the Commission agrees with concerns raised in the 
record that rate regulation has the potential to distort carriers' 
incentives and behavior with regard to pricing and investment in 
network buildout. Capping roaming rates by tying them to a benchmark 
based on larger carriers' retail rates may diminish larger carriers' 
incentives to lower retail prices paid by their customers, and perhaps 
even give them an incentive to raise retail rates. At the same time, by 
requiring larger carriers to offer national roaming coverage to their 
competitors' customers at nearly the same rates offered to their own 
customers, this form of rate

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regulation may also give smaller regional carriers an incentive to 
reduce, or even eliminate, the discounts they offer on regional calling 
plans, thereby driving up the prices regional subscribers pay for calls 
within their plan's calling area.
    15. Similarly, regulation to reduce roaming rates has the potential 
to deter investment in network deployment by impairing buildout 
incentives facing both small and large carriers. By enabling smaller 
regional carriers to offer their customers national roaming coverage at 
more favorable rates without having to build a nationwide network, rate 
regulation would tend to diminish smaller carriers' incentives to 
expand the geographic coverage of their networks. In addition, by 
reducing or eliminating any competitive advantage gained as a result of 
building out nationwide or large regional networks, rate regulation 
would impair larger carriers' incentives to expand, maintain, and 
upgrade their existing networks.

B. Other Issues

1. ``Most Favored'' Roaming Partner Rates for Tier IV CMRS Providers
    16. Since the Commission's determination that automatic roaming is 
common carrier service applies to all CMRS providers regardless of 
size, it declines to create a special Tier IV category for roaming 
services. The Commission also declines to adopt a rule requiring that 
large nationwide carriers offer the same roaming arrangements to Tier 
IV providers as they offer to their ``most favored'' roaming partners.
    17. Because the need for automatic roaming services may not always 
be the same, and the value of roaming services may vary across 
different geographic markets due to differences in population and other 
factors affecting the supply and demand for roaming services, it is 
likely that automatic roaming rates will reasonably vary. Mobile 
services in the United States are differentiated based on price, as 
well as non-price attributes, including geographic coverage. 
Competition between mobile telephone pricing plans that are 
differentiated in these ways benefits consumers by allowing them to 
choose pricing plans that offer the best deal on the types of services 
they use most frequently. Mandating that a subcategory of CMRS carriers 
(i.e., Tier IV providers) are entitled to the same rates as ``most 
favored'' roaming partners and imposing this obligation on certain 
large CMRS carriers, without a clear demonstration of why such a 
requirement would serve the public interest, would distort competitive 
market conditions, resulting in unjust and unreasonable practices and 
discriminatory treatments.
    18. Accordingly, the Commission declines to mandate that a 
subcategory of CMRS carriers (i.e., Tier IV providers) be entitled to 
the same rates as ``most favored'' roaming partners. The Commission 
similarly declines to impose such an obligation on only certain larger 
CMRS carriers. Instead, the Commission believes that its finding that 
automatic roaming rule is a common carrier service subject to 
provisions of Sections 201, 202 and 208 of the Communications Act and 
guidance as to rebuttable presumptions establishing the reasonableness 
of an automatic roaming request provide small CMRS carriers with an 
effective mechanism for recourse against unjust and unreasonable 
practices.
2. In-Market or Home Roaming
    19. The Commission determines that the automatic roaming obligation 
does not include an in-market or home roaming requirement. The 
Commission is not requiring a CMRS carrier to provide automatic roaming 
to a requesting CMRS carrier in a market where the CMRS carrier 
directly competes with the requesting CMRS carrier. Specifically, a 
CMRS carrier is not required to provide automatic roaming to a 
requesting CMRS carrier where the requesting CMRS carrier holds a 
wireless license or spectrum usage rights (e.g., spectrum leases) in 
the same geographic location as the would-be host CMRS carrier. In 
geographic areas outside of these overlapping areas or markets, 
however, a host carrier must comply with the Commission's automatic 
roaming requirement and provide this service in a manner consistent 
with the common carrier obligations of Sections 201 and 202 of the 
Communications Act.
    20. The Commission finds that an automatic roaming request in the 
home area of a requesting CMRS carrier, the area where the requesting 
CMRS carrier has the spectrum to compete directly with the would-be 
host carrier, does not serve the Commission's public interest goals of 
encouraging facilities-based service and supporting consumer 
expectations of seamless coverage when traveling outside the home area. 
The Commission finds that if a carrier is allowed to ``piggy-back'' on 
the network coverage of a competing carrier in the same market, then 
both carriers lose the incentive to build out into high cost areas in 
order to achieve superior network coverage. This conclusion, however, 
should not be construed as prohibiting a requesting carrier from 
seeking to negotiate a roaming agreement including such terms if 
desired, or a host carrier from providing a requesting CMRS carrier 
with in-market or home roaming should it chose to do so. The Commission 
continues to encourage all CMRS carriers to negotiate desired terms and 
conditions of automatic roaming agreements, including automatic roaming 
in overlapping geographic markets.
    21. For purposes of this exclusion from automatic roaming 
obligations, in-market or home roaming is defined as any geographic 
location where the would-be host carrier and the requesting CMRS 
carrier have wireless licenses or spectrum usage rights that could be 
used to provide CMRS that cover or overlap the same geographic 
location(s). Within these overlapping geographic areas, the would-be 
host carrier is not required to comply with an automatic roaming 
request. This in-market or home roaming exclusion does not depend on 
the level of service the requesting CMRS carrier is providing in the 
overlapping geographic area. The exclusion applies regardless of 
whether the requesting CMRS carrier is providing no service, limited 
service, or state-of-the-art service.
    22. Finally, the Commission also determines that the automatic 
roaming obligation under Sections 201 and 202 and the home roaming 
exclusion are not intended to resurrect CMRS resale obligations. CMRS 
resale entails a reseller's purchase of CMRS service provided by a 
facilities-based CMRS carrier in order to provide resold service within 
the same geographic market as the facilities-based CMRS provider. The 
Commission notes that its mandatory resale rule was sunset in 2002, and 
automatic roaming obligations can not be used as a backdoor way to 
create de facto mandatory resale obligations or virtual reseller 
networks.
3. Access to Certain Data Features and Enhanced Digital Networks
(a) Access to Push-to-Talk, Text Messaging (SMS) and Non-Interconnected 
Data Features
    23. As discussed above, the scope of automatic roaming services 
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 finds that it 
would serve the public interest to extend automatic roaming obligations 
to push-

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to-talk and SMS. The Commission declines at this time, however, to 
adopt a rule extending the automatic roaming obligation beyond that to 
offerings that do not fall within the scope of the automatic roaming 
services' definition, such as non-interconnected services or features.
    24. With respect to push-to-talk and SMS, the Commission notes that 
such offerings are typically bundled as a feature on the handset with 
other CMRS services, such as real-time, two-way switched mobile voice 
or data, that are interconnected with the public switched network. 
Provision of these features differs from one carrier to another, i.e., 
push-to-talk and SMS are interconnected features or services in some 
instances, but non-interconnected in others, depending on the 
technology and network configuration chosen by the carriers. The 
Commission is also aware that consumers consider push-to-talk and SMS 
as 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. For these reasons, the Commission finds that it 
is in the public interest to impose an automatic roaming obligation on 
push-to-talk and SMS offerings, subject to several provisos. Namely, 
the requesting carrier must offer push-to-talk and SMS to its 
subscribers on its own home network; push-to-talk and SMS roaming must 
be technically feasible; and any changes to the would-be host carrier's 
network that are necessary to accommodate push-to-talk and SMS roaming 
requests must be economically reasonable.
    25. With respect to non-interconnected features or services, the 
Commission finds that the record in this proceeding lacks a clear 
showing that it is in the public interest at this time to impose an 
automatic roaming obligation. While proponents of unrestricted data 
roaming have argued that requiring roaming access to the non-
interconnected features of a competitor's network would benefit 
consumers by providing greater availability for data features that are 
increasingly used by consumers, opponents are concerned that that it 
might undercut incentives to differentiate products and could chill 
innovation. These opponents claim that extending roaming to non-
interconnected features of a competitors' network may also adversely 
affect business decisions to build out facilities for facilities-based 
competition and reduce the incentives to access the spectrum through 
other means such as initial spectrum licensing or secondary markets. In 
light of these diverse views, the Commission believes it is in the 
public interest, however, to examine the issue of automatic roaming for 
non-interconnected features or services through a Further Notice of 
Proposed Rulemaking (FNPRM).
(b) Access to Enhanced Digital Networks
    26. As previously explained, the automatic roaming obligation 
applies to 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. As discussed 
above with respect to non-interconnected services, the Commission 
similarly declines at this time to extend the scope of the automatic 
roaming services definition to include non-interconnected services 
provided over enhanced digital networks, such as wireless broadband 
Internet access. The Commission finds that automatic roaming, as a 
common carrier obligation, does not extend to services that are 
classified as information services or to other wireless services that 
are not CMRS.
    27. While the Commission finds that, based on the current record, 
it is premature to impose any roaming obligation regarding enhanced 
data services that are not CMRS and not interconnected to the public 
switched network, the Commission will examine this matter further in 
the FNPRM.
4. Public Filing of Roaming Rates
    28. The Commission declines to impose an affirmative obligation on 
CMRS carriers to post their roaming rates. As is generally the case 
with commercial agreements, roaming agreements are confidential and 
filing them would impose administrative costs on the carriers. In light 
of its adoption of an automatic roaming rule as discussed below, the 
Commission finds that the available remedies for redress are sufficient 
to address disputes that may arise.

C. Codification of Automatic Roaming Obligations

    29. The Commission codifies the automatic roaming obligations of 
CMRS carriers into a rule requiring that they provide automatic roaming 
to any requesting technologically compatible CMRS carrier outside of 
the requesting CMRS carrier's home market on reasonable and 
nondiscriminatory terms and conditions. This rule applies to CMRS 
carriers that offer real-time, two-way switched voice or data service 
over digital network that is interconnected with the public switched 
network and utilize an in-network switching facility that enables the 
provider to reuse frequencies and accomplish seamless hand-offs of 
subscriber calls. The Commission also notes that codification of an 
automatic roaming obligation gives CMRS carriers another avenue to 
redress roaming disputes, benefiting mobile telephony subscribers.
    30. Finally, the Commission clarifies that automatic roaming, 
pursuant to Sections 201 and 202, as a common carrier obligation 
applies to CMRS carriers' analog networks. The Commission does not 
find, however, that it is necessary to codify this obligation into a 
specific rule. With the sunset of the analog service requirement on 
February 18, 2008, there would be little benefit to a codified 
automatic roaming rule for analog networks that might potentially apply 
between now and that date. Individual carriers may, of course, enter 
into automatic roaming agreements for their analog networks, and any 
allegations that particular practices on analog networks are unjust, 
unreasonable or otherwise in violation of Sections 201 and 202 of the 
Communications Act would be subject to the complaint process of Section 
208 of the Communications Act.

D. Petition for Investigation Pursuant to Section 403 of the Act

    31. Because the Commission finds that the record is sufficient to 
codify automatic roaming obligations of CMRS carriers, the Commission 
denies the Joint Petition for Investigation Pursuant to Section 403, 
which petitioners contend will assist the Commission in gathering 
necessary information to support the adoption of an automatic roaming 
rule.

E. Manual Roaming

    32. The Commission declines to sunset its existing manual roaming 
rule and, instead, retains it as a safety net for consumers. The 
Commission is aware that as automatic roaming becomes increasingly 
ubiquitous, it will render the need for manual roaming obsolete. The 
Commission notes, however, that the record demonstrates that automatic 
roaming is not available in certain instances today and, therefore, the 
continuing utility of the manual roaming rule in the immediate future 
is not completely obviated. For this reason, the Commission retains the 
manual roaming rule as a safety net to ensure that subscribers can 
initiate a wireless call when they are outside of their service area 
through manual

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roaming if there is no automatic roaming agreement in place.

Final Regulatory Flexibility Analysis

    33. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\2\ an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the NPRM in WT Docket No. 05-265, published at 70 FR 
56612, September 28, 2005.\3\ The Commission sought written public 
comment on the proposals in the NPRM, including comment on the IRFA. 
This present Final Regulatory Flexibility Analysis (FRFA) conforms to 
the RFA.\4\
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    \2\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996).
    \3\ See In the Matter of Reexamination of Roaming Obligations of 
Commercial Mobile Radio Service Providers, Automatic and Manual 
Roaming Obligations Pertaining to Commercial Mobile Radio Services, 
Memorandum Opinion & Order and Notice of Proposed Rulemaking, WT 
Docket No. 05-265, 20 FCC Rcd 15047, 15068 App. (2005) (``MO&O'' and 
``NPRM,'' respectively).
    \4\ See 5 U.S.C. 604.
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A. Need for, and Objectives of, the Report and Order

    34. In the Report and Order, with regard to commercial services, 
the Commission takes an affirmative step to facilitate the provision of 
wireless services to consumers, especially those in rural areas, and to 
clarify its rules related to roaming. The Commission clarifies that 
automatic roaming is a common carrier obligation for CMRS carriers, 
requiring them to provide roaming services to other carriers upon 
reasonable request and on a just, reasonable, and non-discriminatory 
basis pursuant to Sections 201 and 202 of the Communications Act. The 
Commission reiterates its earlier determination that roaming is a 
common carrier service because roaming capability gives end users 
access to a foreign network in order to communicate messages of their 
own choosing. Thus, the provision of roaming is subject to the 
requirements of Section 201, 202, and 208 of the Communications Act.\5\
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    \5\ See Reexamination of Roaming Obligations of Commercial 
Mobile Radio Service Providers, Automatic and Manual Roaming 
Obligations Pertaining to Commercial Mobile Radio Services, WT 
Docket No. 05-265, Memorandum Opinion & Order and Notice of Proposed 
Rulemaking, 20 FCC Rcd 15047, 15048 para. 2 (2005) (``Reexamination 
NPRM''); Interconnection and Resale Obligations Pertaining to 
Commercial Mobile Radio Services, CC Docket No. 94-54, Second Report 
and Order and Third Notice of Proposed Rulemaking, 11 FCC Rcd 9462, 
9463-71 paras. 1-14 (1996) (``Interconnection and Resale Obligations 
Second Report and Order'' and ``Interconnection and Resale 
Obligations Third NPRM,'' respectively). See also 47 CFR 20.15. 
Section 332(c)(1) of the Act provides that a person engaged in the 
provision of a service that is a commercial mobile service shall be 
treated as a common carrier for purposes of the Act. See 47 U.S.C. 
332(c)(1).
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    35. The Commission also finds that the common carrier obligation to 
provide roaming extends to services that are real-time, two-way 
switched voice or data service that are interconnected with the public 
switched network and utilize an in-network switching facility that 
enables the provider to reuse frequencies and accomplish seamless hand-
offs of subscriber calls. The Commission notes that roaming, as a 
common carrier obligation, does not extend to services that are 
classified as information services or to services that are not CMRS.\6\
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    \6\ Appropriate Regulatory Treatment for Broadband Access to the 
Internet Over Wireless Networks, Declaratory Ruling, FCC No. 07-30, 
paras. 11-12 (rel. Mar. 23, 2007) (``Wireless Broadband Internet 
Access Declaratory Ruling'').
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    36. The Commission recognizes that today CMRS consumers 
increasingly rely on mobile telephony services and they reasonably 
expect to continue their wireless communications even when they are out 
of their home network area. Thus, the findings in this Report and Order 
with respect to CMRS providers' obligations regarding roaming services 
serve the public interest and safeguard wireless consumers' reasonable 
expectations of seamless continuous nationwide commercial mobile 
telephony services through roaming. The Commission also declines to 
sunset the existing manual roaming requirement at this time to provide 
additional flexibility for consumers.

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

    37. There were no comments filed specifically in response to the 
IRFA.

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

    38. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of, the number of small entities that may 
be affected by the proposed rules, if adopted.\7\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \8\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\9\ 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).\10\
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    \7\ 5 U.S.C. 604(a)(3).
    \8\ 5 U.S.C. 601(6).
    \9\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \10\ 15 U.S.C. 632.
---------------------------------------------------------------------------

    39. In the following paragraphs, the Commission further describes 
and estimates the number of small entity licensees that may be affected 
by the rules the Commission adopts in this Report and Order. The 
Commission's finding that automatic roaming is a common carrier service 
subject to protections outlined in Sections 201, 202 and 208 of the Act 
affects all CMRS carriers that provide real-time, two-way switched 
voice or data service that are interconnected with the public switched 
network and utilize an in-network switching facility that enables the 
provider to reuse frequencies and accomplish seamless hand-offs of 
subscriber calls. Such carriers are obligated to provide automatic 
roaming. As a common carrier obligation, the automatic roaming rule 
does not extend to non-interconnected services/features or services 
that are classified as information services or to services that are not 
CMRS.
    40. Since this Report and Order applies to multiple services, this 
FRFA analyzes the number of small entities affected on a service-by-
service basis. When identifying small entities that could be affected 
by the Commission's new rules, this FRFA provides information that 
describes auctions results, including the number of small entities that 
were winning bidders. However, the number of winning bidders that 
qualify as small businesses at the close of an auction does not 
necessarily reflect the total number of small entities currently in a 
particular service. The Commission does not generally require that 
licensees later provide business size information, except in the 
context of an assignment or a transfer of control application that 
involves unjust enrichment issues.
    41. Wireless Service Providers. The SBA has developed a small 
business size standard for wireless firms within the two broad economic 
census categories of ``Paging''\11\ and ``Cellular and Other Wireless

[[Page 50069]]

Telecommunications.'' \12\ Under both categories, the SBA deems a 
wireless business to be small if it has 1,500 or fewer employees. For 
the census category of Paging, Census Bureau data for 2002 show that 
there were 807 firms in this category that operated for the entire 
year.\13\ Of this total, 804 firms had employment of 999 or fewer 
employees, and three firms had employment of 1,000 employees or 
more.\14\ 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.\15\ Of this total, 1,378 firms had 
employment of 999 or fewer employees, and 19 firms had employment of 
1,000 employees or more.\16\ Thus, under this second category and size 
standard, the majority of firms can, again, be considered small.
---------------------------------------------------------------------------

    \11\ 13 CFR 121.201, NAICS code 517211.
    \12\ 13 CFR 121.201, NAICS code 517212.
    \13\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517211 (issued Nov. 2005).
    \14\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is for firms with ``1000 
employees or more.''
    \15\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
    \16\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is for firms with ``1000 
employees or more.''
---------------------------------------------------------------------------

    42. Cellular Licensees. The SBA has developed a small business size 
standard for small businesses in the category ``Cellular and Other 
Wireless Telecommunications.'' \17\ Under that SBA category, a business 
is small if it has 1,500 or fewer employees.\18\ 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.\19\ Of this total, 1,378 firms had 
employment of 999 or fewer employees, and 19 firms had employment of 
1,000 employees or more.\20\ Thus, under this category and size 
standard, the majority of firms can be considered small.
---------------------------------------------------------------------------

    \17\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517212.
    \18\ Id.
    \19\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
    \20\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is for firms with ``1000 
employees or more.''
---------------------------------------------------------------------------

    43. Broadband Personal Communications Service. The broadband 
Personal Communications Service (PCS) spectrum is divided into six 
frequency blocks designated A through F, and the Commission has held 
auctions for each block. The Commission has created a small business 
size standard for Blocks C and F as an entity that has average gross 
revenues of less than $40 million in the three previous calendar 
years.\21\ For Block F, an additional small business size standard for 
``very small business'' was added and is defined as an entity that, 
together with its affiliates, has average gross revenues of not more 
than $15 million for the preceding three calendar years.\22\ These 
small business size standards, in the context of broadband PCS 
auctions, have been approved by the SBA.\23\ No small businesses within 
the SBA-approved small business size standards bid successfully for 
licenses in Blocks A and B. There were 90 winning bidders that 
qualified as small entities in the C Block auctions. A total of 93 
``small'' and ``very small'' business bidders won approximately 40 
percent of the 1,479 licenses for Blocks D, E, and F.\24\ On March 23, 
1999, the Commission reauctioned 155 C, D, E, and F Block licenses; 
there were 113 small business winning bidders.\25\ On January 26, 2001, 
the Commission completed the auction of 422 C and F PCS licenses in 
Auction 35.\26\ Of the 35 winning bidders in this auction, 29 qualified 
as ``small'' or ``very small'' businesses. Subsequent events concerning 
Auction 35, including judicial and agency determinations, resulted in a 
total of 163 C and F Block licenses being available for grant.
---------------------------------------------------------------------------

    \21\ See Amendment of Parts 20 and 24 of the Commission's 
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile 
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850-
7852 paras. 57-60 (1996); see also 47 CFR 24.720(b).
    \22\ See Amendment of Parts 20 and 24 of the Commission's 
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile 
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7852 
para. 60.
    \23\ See Letter to Amy Zoslov, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, Federal 
Communications Commission, from Aida Alvarez, Administrator, Small 
Business Administration, dated December 2, 1998.
    \24\ FCC News, ``Broadband PCS, D, E and F Block Auction 
Closes,'' No. 71744 (rel. January 14, 1997).
    \25\ See ``C, D, E, and F Block Broadband PCS Auction Closes,'' 
public notice, 14 FCC Rcd 6688 (WTB 1999).
    \26\ See ``C and F Block Broadband PCS Auction Closes; Winning 
Bidders Announced,'' public notice, 16 FCC Rcd 2339 (2001).
---------------------------------------------------------------------------

    44. Narrowband Personal Communications Service. The Commission held 
an auction for Narrowband Personal Communications Service (PCS) 
licenses that commenced on July 25, 1994, and closed on July 29, 1994. 
A second commenced on October 26, 1994 and closed on November 8, 1994. 
For purposes of the first two Narrowband PCS auctions, ``small 
businesses'' were entities with average gross revenues for the prior 
three calendar years of $40 million or less.\27\ Through these 
auctions, the Commission awarded a total of forty-one licenses, 11 of 
which were obtained by four small businesses.\28\ To ensure meaningful 
participation by small business entities in future auctions, the 
Commission adopted a two-tiered small business size standard in the 
Narrowband PCS Second Report and Order.\29\ A ``small business'' is an 
entity that, together with affiliates and controlling interests, has 
average gross revenues for the three preceding years of not more than 
$40 million.\30\ A ``very small business'' is an entity that, together 
with affiliates and controlling interests, has average gross revenues 
for the three preceding years of not more than $15 million.\31\ The SBA 
has approved these small business size standards.\32\ A third auction 
commenced on October 3, 2001 and closed on October 16, 2001. Here, five 
bidders won 317 (MTA and nationwide) licenses.\33\ Three of these 
claimed status as a small or very small entity and won 311 licenses.
---------------------------------------------------------------------------

    \27\ Implementation of Section 309(j) of the Communications 
Act--Competitive Bidding Narrowband PCS, Third Memorandum Opinion 
and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 175, 
196 para. 46 (1994).
    \28\ See ``Announcing the High Bidders in the Auction of ten 
Nationwide Narrowband PCS Licenses, Winning Bids Total 
$617,006,674,'' public notice, PNWL 94-004 (rel. Aug. 2, 1994); 
``Announcing the High Bidders in the Auction of 30 Regional 
Narrowband PCS Licenses; Winning Bids Total $490,901,787,'' public 
notice, PNWL 94-27 (rel. Nov. 9, 1994).
    \29\ Amendment of the Commission's Rules to Establish New 
Personal Communications Services, Narrowband PCS, Second Report and 
Order and Second Further Notice of Proposed Rule Making, 15 FCC Rcd 
10456, 10476 para. 40 (2000).
    \30\ Id.
    \31\ Id.
    \32\ See Letter to Amy Zoslov, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, Federal 
Communications Commission, from Aida Alvarez, Administrator, Small 
Business Administration, dated December 2, 1998.
    \33\ See ``Narrowband PCS Auction Closes,'' public notice, 16 
FCC Rcd 18663 (WTB 2001).
---------------------------------------------------------------------------

    45. Specialized Mobile Radio. The Commission awards ``small 
entity'' bidding credits in auctions for Specialized Mobile Radio (SMR) 
geographic area licenses in the 800 MHz

[[Page 50070]]

and 900 MHz bands to firms that had revenues of no more than $15 
million in each of the three previous calendar years.\34\ The 
Commission awards ``very small entity'' bidding credits to firms that 
had revenues of no more than $3 million in each of the three previous 
calendar years.\35\ The SBA has approved these small business size 
standards for the 900 MHz Service.\36\ The Commission has held auctions 
for geographic area licenses in the 800 MHz and 900 MHz bands. The 900 
MHz SMR auction began on December 5, 1995, and closed on April 15, 
1996. Sixty bidders claiming that they qualified as small businesses 
under the $15 million size standard won 263 geographic area licenses in 
the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200 
channels began on October 28, 1997, and was completed on December 8, 
1997. Ten bidders claiming that they qualified as small businesses 
under the $15 million size standard won 38 geographic area licenses for 
the upper 200 channels in the 800 MHz SMR band.\37\ A second auction 
for the 800 MHz band was held on January 10, 2002 and closed on January 
17, 2002 and included 23 BEA licenses. One bidder claiming small 
business status won five licenses.\38\
---------------------------------------------------------------------------

    \34\ 47 CFR 90.814(b)(1).
    \35\ Id.
    \36\ See Letter to Thomas Sugrue, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration, dated 
August 10, 1999.
    \37\ See ``Correction to Public Notice DA 96-586 `FCC Announces 
Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz 
SMR in Major Trading Areas,''' public notice, 18 FCC Rcd 18367 (WTB 
1996).
    \38\ See ``Multi-Radio Service Auction Closes,'' public notice, 
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------

    46. The auction of the 1,050 800 MHz SMR geographic area licenses 
for the General Category channels began on August 16, 2000, and was 
completed on September 1, 2000. Eleven bidders won 108 geographic area 
licenses for the General Category channels in the 800 MHz SMR band 
qualified as small businesses under the $15 million size standard. In 
an auction completed on December 5, 2000, a total of 2,800 Economic 
Area licenses in the lower 80 channels of the 800 MHz SMR service were 
sold. Of the 22 winning bidders, 19 claimed ``small business'' status 
and won 129 licenses. Thus, combining all three auctions, 40 winning 
bidders for geographic licenses in the 800 MHz SMR band claimed status 
as small business.
    47. In addition, there are numerous incumbent site-by-site SMR 
licensees and licensees with extended implementation authorizations in 
the 800 and 900 MHz bands. The Commission does not know how many firms 
provide 800 MHz or 900 MHz geographic area SMR pursuant to extended 
implementation authorizations, nor how many of these providers have 
annual revenues of no more than $3 million or $15 million (the special 
small business size standards), or have no more than 1,500 employees 
(the generic SBA standard for wireless entities, discussed, supra). One 
firm has over $15 million in revenues. The Commission assumes, for 
purposes of this analysis, that all of the remaining existing extended 
implementation authorizations are held by small entities.
    48. Advanced Wireless Services. In the AWS-1 Report and Order, the 
Commission adopted rules that affect applicants who wish to provide 
service in the 1710-1755 MHz and 2110-2155 MHz bands.\39\ The AWS-1 
Report and Order defines a ``small business'' as an entity with average 
annual gross revenues for the preceding three years not exceeding $40 
million, and a ``very small business'' as an entity with average annual 
gross revenues for the preceding three years not exceeding $15 million. 
The AWS-1 Report and Order also provides small businesses with a 
bidding credit of 15 percent and very small businesses with a bidding 
credit of 25 percent.
---------------------------------------------------------------------------

    \39\ Service Rules for Advanced Wireless Services in the 1.7 GHz 
and 2.1 GHz Bands, WT Docket No. 02-353, Report and Order, 18 FCC 
Rcd 25162 (2003) (AWS-1 Report and Order).
---------------------------------------------------------------------------

    49. Rural Radiotelephone Service. The Commission uses the SBA small 
business size standard applicable to cellular and other wireless 
telecommunication companies, i.e., an entity employing no more than 
1,500 persons.\40\ There are approximately 1,000 licensees in the Rural 
Radiotelephone Service, and the Commission estimates that there are 
1,000 or fewer small entity licensees in the Rural Radiotelephone 
Service that may be affected by the rules and policies adopted herein.
---------------------------------------------------------------------------

    \40\ 13 CFR 121.201, NAICS code 517212.
---------------------------------------------------------------------------

    50. 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.\41\ The SBA has approved these definitions.\42\ 
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.
---------------------------------------------------------------------------

    \41\ Amendment of the Commission's Rules to Establish Part 27, 
the Wireless Communications Service (WCS), Report and Order, 12 FCC 
Rcd 10785, 10879 para. 194 (1997).
    \42\ See Letter to Amy Zoslov, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, Federal 
Communications Commission, from Aida Alvarez, Administrator, Small 
Business Administration, dated December 2, 1998.
---------------------------------------------------------------------------

    51. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service 
has both Phase I and Phase II licenses. Phase I licensing was conducted 
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized 
to operate in the 220 MHz Band. The Commission has not developed a 
definition of small entities specifically applicable to such incumbent 
220 MHz Phase I licensees. To estimate the number of such licensees 
that are small businesses, the Commission applies the small business 
size standard under the SBA rules applicable to ``Cellular and Other 
Wireless Telecommunications'' companies. This category provides that a 
small business is a wireless company employing no more than 1,500 
persons.\43\ 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.\44\ Of 
this total, 1,378 firms had employment of 999 or fewer employees, and 
19 firms had employment of 1,000 employees or more.\45\ Thus, under 
this category and size standard, the majority of firms can be 
considered small.
---------------------------------------------------------------------------

    \43\ 13 CFR 121.201, NAICS code 517212.
    \44\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
    \45\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is for firms with ``1000 
employees or more.''
---------------------------------------------------------------------------

    52. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service 
has both Phase I and Phase II licenses. The Phase II 220 MHz service is 
subject to spectrum auctions. In the 220 MHz Third Report and Order, 
the

[[Page 50071]]

Commission adopted a small business size standard for defining 
``small'' and ``very small'' businesses for purposes of determining 
their eligibility for special provisions such as bidding credits and 
installment payments.\46\ This small business standard indicates that a 
``small business'' is an entity that, together with its affiliates and 
controlling principals, has average gross revenues not exceeding $15 
million for the preceding three years.\47\ A ``very small business'' is 
defined as an entity that, together with its affiliates and controlling 
principals, has average gross revenues that do not exceed $3 million 
for the preceding three years.\48\ The SBA has approved these small 
size standards.\49\ Auctions of Phase II licenses commenced on 
September 15, 1998, and closed on October 22, 1998.\50\ In the first 
auction, 908 licenses were auctioned in three different-sized 
geographic areas: Three nationwide licenses, 30 Regional Economic Area 
Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908 
licenses auctioned, 693 were sold.\51\ Thirty-nine small businesses won 
373 licenses in the first 220 MHz auction. A second auction included 
225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies 
claiming small business status won 158 licenses.\52\ A third auction 
included four licenses: 2 BEA licenses and 2 EAG licenses in the 220 
MHz Service. No small or very small business won any of these 
licenses.\53\
---------------------------------------------------------------------------

    \46\ Amendment of Part 90 of the Commission's Rules to Provide 
For the Use of the 220-222 MHz Band by the Private Land Mobile Radio 
Service, Third Report and Order, 12 FCC Rcd 10943, 11068-70 paras. 
291-295 (1997).
    \47\ Id. at 11068 para. 291.
    \48\ Id.
    \49\ See Letter to Daniel Phythyon, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration, dated 
January 6, 1998.
    \50\ See generally ``220 MHz Service Auction Closes,'' public 
notice, 14 FCC Rcd 605 (WTB 1998).
    \51\ See ``FCC Announces It is Prepared to Grant 654 Phase II 
220 MHz Licenses After Final Payment is Made,'' public notice, 14 
FCC Rcd 1085 (WTB 1999).
    \52\ See ``Phase II 220 MHz Service Spectrum Auction Closes,'' 
public notice, 14 FCC Rcd 11218 (WTB 1999).
    \53\ See ``Multi-Radio Service Auction Closes,'' public notice, 
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------

    53. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, 
the Commission adopted size standards for ``small businesses'' and 
``very small businesses'' for purposes of determining their eligibility 
for special provisions such as bidding credits and installment 
payments.\54\ 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.\55\ 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.\56\ SBA approval of these definitions is not required.\57\ 
An auction of 52 Major Economic Area (MEA) licenses commenced on 
September 6, 2000, and closed on September 21, 2000.\58\ Of the 104 
licenses auctioned, 96 licenses were sold to nine bidders. Five of 
these bidders were small businesses that won a total of 26 licenses. A 
second auction of 700 MHz Guard Band licenses commenced on February 13, 
2001, and closed on February 21, 2001. All eight of the licenses 
auctioned were sold to three bidders. One of these bidders was a small 
business that won a total of two licenses.\59\
---------------------------------------------------------------------------

    \54\ Service Rules for the 746-764 MHz Bands, and Revisions to 
Part 27 of the Commission's Rules, Second Report and Order, 15 FCC 
Rcd 5299 (2000). Service rules were amended in 2007, but no changes 
were made to small business size categories. See Service Rules for 
the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, 
Revision of the Commission's Rules to Ensure Compatibility with 
Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, 
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-
Compatible Telephones, WT Docket No. 01-309, Biennial Regulatory 
Review--Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and 
Harmonize Various Rules Affecting Wireless Radio Services, WT Docket 
03-264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band 
Licenses and Revisions to Part 27 of the Commission's Rules, WT 
Docket No. 06-169, Implementing a Nationwide, Broadband, 
Interoperable Public Safety Network in the 700 MHz Band, PS Docket 
No. 06-229, Development of Operational, Technical and Spectrum 
Requirements for Meeting Federal, State and Local Public Safety 
Communications Requirements Through the Year 2010, WT Docket No. 96-
86, Report and Order and Further Notice of Proposed Rulemaking, 22 
FCC Rcd 8064 (2007).
    \55\ Id. at 5343 para. 108.
    \56\ Id.
    \57\ Id. At 5343 para. 108 n.246 (for the 746-764 MHz and 776-
704 MHz bands, the Commission is exempt from 15 U.S.C. 632, which 
requires Federal agencies to obtain Small Business Administration 
approval before adopting small business size standards).
    \58\ See ``700 MHz Guard Bands Auction Closes: Winning Bidders 
Announced,'' public notice, 15 FCC Rcd 18026 (2000).
    \59\ See ``700 MHz Guard Bands Auctions Closes: Winning Bidders 
Announced,'' public notice, 16 FCC Rcd 4590 (WTB 2001).
---------------------------------------------------------------------------

    54. Upper 700 MHz Band Licenses. The Commission released a Report 
and Order authorizing service in the Upper 700 MHz band.\60\ An auction 
for these licenses, previously scheduled for January 13, 2003, was 
postponed.\61\
---------------------------------------------------------------------------

    \60\ Service Rules for the 746-764 and 776-794 MHz Bands, and 
Revisions to Part 27 of the Commission's Rules, Second Memorandum 
Opinion and Order, 16 FCC Rcd 1239 (2001). Service rules were 
amended in 2007, but no changes were made to small business size 
categories. See Service Rules for the 698-746, 747-762 and 777-792 
MHz Bands, WT Docket No. 06-150, Revision of the Commission's Rules 
to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, 
CC Docket No. 94-102, Section 68.4(a) of the Commission's Rules 
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309, 
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90 
to Streamline and Harmonize Various Rules Affecting Wireless Radio 
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper 
700 MHz Guard Band Licenses and Revisions to Part 27 of the 
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide, 
Broadband, Interoperable Public Safety Network in the 700 MHz Band, 
PS Docket No. 06-229, Development of Operational, Technical and 
Spectrum Requirements for Meeting Federal, State and Local Public 
Safety Communications Requirements Through the Year 2010, WT Docket 
No. 96-86, Report and Order and Further Notice of Proposed 
Rulemaking, 22 FCC Rcd 8064 (2007).
    \61\ See ``Auction of Licenses for 747-762 and 777-792 MHz Bands 
(Auction No. 31) Is Rescheduled,'' public notice, 16 FCC Rcd 13079 
(WTB 2003).
---------------------------------------------------------------------------

    55. Lower 700 MHz Band Licenses. The Commission adopted criteria 
for defining three groups of small businesses for purposes of 
determining their eligibility for special provisions such as bidding 
credits.\62\ The Commission has defined a small business as an entity 
that, together with its affiliates and controlling principals, has 
average gross revenues not exceeding $40 million for the preceding 
three years.\63\ A very small business is defined as an entity that, 
together with its affiliates and controlling principals, has average 
gross revenues that are not more than $15 million for the preceding 
three years.\64\ Additionally, the Lower 700 MHz Band has a third 
category of small business status that may be claimed for Metropolitan/
Rural Service Area (MSA/RSA) licenses. The third category is 
entrepreneur, which is defined as an entity that, together with its 
affiliates and controlling principals, has average gross revenues that 
are not more than $3 million for the preceding three years.\65\ The SBA 
has approved these small size standards.\66\ An auction of 740 licenses 
(one license in each of the 734 MSAs/RSAs and one license in each of 
the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, 
and closed on

[[Page 50072]]

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.\67\ A second auction commenced 
on May 28, 2003, and closed on June 13, 2003, and included 256 
licenses: 5 EAG licenses and 476 CMA licenses.\68\ Seventeen winning 
bidders claimed small or very small business status and won sixty 
licenses, and nine winning bidders claimed entrepreneur status and won 
154 licenses.\69\
---------------------------------------------------------------------------

    \62\ See Reallocation and Service Rules for the 698-746 MHz 
Spectrum Band (Television Channels 52-59), Report and Order, 17 FCC 
Rcd 1022 (2002).
    \63\ Id. at 1087-88 para. 172.
    \64\ Id.
    \65\ Id. at 1088 para. 173.
    \66\ See Letter to Thomas Sugrue, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration, dated 
August 10, 1999.
    \67\ See ``Lower 700 MHz Band Auction Closes,'' public notice, 
17 FCC Rcd 17272 (WTB 2002).
    \68\ See ``Lower 700 MHz Band Auction Closes,'' public notice, 
18 FCC Rcd 11873 (WTB 2003).
    \69\ Id.
---------------------------------------------------------------------------

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    56. The only reporting or recordkeeping costs to be incurred are 
administrative costs to ensure that an entity's practices are in 
compliance with the rule. The only compliance requirement is that CMRS 
carriers must provide automatic roaming to any requesting 
technologically compatible CMRS carrier outside of the requesting CMRS 
carrier's home market on reasonable and non-discriminatory terms and 
conditions. This rule applies to CMRS carriers that offer real-time, 
two-way switched voice or data service over digital network that is 
interconnected with the public switched network and utilize an in-
network switching facility that enables the provider to reuse 
frequencies and accomplish seamless hand-offs of subscriber calls.\70\
---------------------------------------------------------------------------

    \70\ See Report and Order, supra, paras. 28-29.
---------------------------------------------------------------------------

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    57. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.\71\
---------------------------------------------------------------------------

    \71\ See 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    58. In this Report and Order, the Commission clarifies that 
automatic roaming is a common carrier obligation for CMRS carriers, 
requiring them to provide roaming services to other carriers upon 
reasonable request and on a just, reasonable, and non-discriminatory 
basis pursuant to Sections 201 and 202 of the Communications Act. In 
adopting this rule, the Commission determined that when a reasonable 
request is made by a technologically compatible CMRS carrier, a host 
CMRS carrier must provide automatic roaming to the requesting carrier 
outside of the requesting carrier's home market, consistent with the 
protections of Sections 201 and 202 of the Communications Act.
    59. In the Report and Order, the Commission finds that the scope of 
automatic roaming services 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 the provider to reuse 
frequencies and accomplish seamless hand-offs of subscriber calls. In 
addition, the Commission determines that it would serve the public 
interest to extend automatic roaming obligation to push-to-talk and 
text messaging (SMS). However, the Commission declines to adopt a rule 
extending the automatic roaming obligation beyond that to offerings 
that do not fall within the scope of the automatic roaming services' 
definition, such as non-interconnected services or features or services 
that are classified as information services or to services that are not 
CMRS.\72\
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    \72\ Appropriate Regulatory Treatment for Broadband Access to 
the Internet Over Wireless Networks, Declaratory Ruling, FCC No. 07-
30, paras. 11-12 (rel. Mar. 23, 2007) (``Wireless Broadband Internet 
Access Declaratory Ruling'').
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    60. In response to the Reexamination NPRM, some of the commenters 
requested that the Commission cap the rates that a carrier may charge 
other carriers for automatic roaming service based on some benchmark of 
retail rates.\73\ Some of these commenters have also submitted economic 
analyses in support of their proposals.\74\ Other commenters oppose any 
rate regulation and, in turn, have submitted their own economic 
analyses disputing the theory and evidence used to justify the 
imposition of rate regulation.\75\ In the Report and Order, the 
Commission declines to impose a price cap or any other form of rate 
regulation on the fees carriers pay each other when one carrier's 
customer roams on another carrier's network. The Commission believes 
that the rates individual carriers pay for automatic roaming services 
should be determined in the marketplace through negotiations between 
the carriers, subject to the statutory requirement that any rates 
charged be reasonable and non-discriminatory.
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    \73\ See Leap Comments at 17, 19-20 (recommending that, in 
geographic areas where there are three or fewer facilities-based 
carriers from which the carrier seeking automatic roaming service 
could obtain such service, the Commission prohibit a facilities-
based carrier from charging rates for automatic roaming that exceed 
the carrier's average retail revenue per minute for that area). See 
also SouthernLINC Comments at 49 (proposing that the Commission 
establish a presumption that a carrier's roaming rates in a region 
are unreasonable if they exceed the lowest prevailing per-minute 
retail rates that it charges its own subscribers in that region).
    \74\ See, e.g., Leap Comments, Attachment A (ERS Group, 
Wholesale Pricing Methods of Nationwide Carriers Providing 
Commercial Mobile Radio Services: An Economic Analysis); 
SouthernLINC Comments, Attachment B (R. Preston McAfee, The 
Economics of Wholesale Roaming in CMRS Markets); SouthernLINC Reply 
Comments, Attachment B (R. Preston McAfee, The Economics of 
Wholesale Roaming in CMRS Markets: Reply Comments); Leap Reply 
Comments, Attachment A (David S. Sibley, The Existence of Regional, 
Technology-Specific Wholesale Antitrust Markets for Roaming 
Services); Leap Reply Comments, Attachment B (ERS Group, A Further 
Analysis of the Wholesale Pricing Methods of Nationwide Carriers 
Providing Commercial Mobile Radio Service).
    \75\ See, e.g., Rosston/Sprint Nextel Comments; Rosston/Sprint 
Nextel Reply Comments; Hazlett/Cingular Reply Comments; Furchtgott-
Roth/T-Mobile Reply Comments.
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    61. The Commission reiterates that the general policy regarding 
CMRS services is to allow competitive market forces, rather than 
regulations, to promote the development of wireless services. On 
balance, taking into consideration the concerns raised in the record by 
certain CMRS carriers \76\ and its preference for allowing competitive 
market forces to govern rate and rate structures for wireless services, 
the Commission expressly declines to impose any corresponding rate 
regulation of automatic roaming services.
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    \76\ See, e.g., Cingular Comments at i, 18-30; NDNC Comments at 
3; Nextel Partners Comments at 5-6.
---------------------------------------------------------------------------

    62. In the Reexamination NPRM, the Commission sought comment on 
whether a carrier should be required to enter into an automatic roaming 
arrangement on a nondiscriminatory basis with a facilities-based-
competitor in the same market. In the Report and Order, the Commission 
determines that the automatic roaming obligation does not include an 
in-market or home roaming requirement. The Commission finds that an 
automatic roaming request in the home area of a requesting CMRS 
carrier, the area where the requesting

[[Page 50073]]

CMRS carrier has the spectrum to compete directly with the would-be 
host carrier, does not serve public interest goals of encouraging 
facilities-based service and supporting consumer expectations of 
seamless coverage when traveling outside the home area.
    63. In the Reexamination NPRM, the Commission sought comment on 
access to push-to-talk, dispatch, or other data roaming. Some carriers 
advocate that the Commission should adopt an automatic roaming rule 
that requires carriers to permit roaming access to all technical 
features of their systems, and/or require carriers to make the same 
features accessible to all of their roaming partners (e.g., push-to-
talk, dispatch, text messaging (SMS) or other data roaming services). 
Based on the record, in the Report and Order, the Commission finds that 
it would serve public interest to extend automatic roaming obligations 
to push-to-talk and SMS. However, the Commission declines to adopt a 
rule extending the automatic roaming obligation beyond that to 
offerings that do not fall within the scope of the automatic roaming 
services' definition, such as non-interconnected services or features. 
With respect to push-to-talk and SMS, the Commission finds that such 
offerings are typically bundled as a feature on the handset with other 
CMRS services, such as real-time, two-way switched mobile voice or 
data, which are interconnected with the public switched network. Thus, 
consumers consider push-to-talk and SMS as 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.
    64. With respect to non-interconnected data service, the Commission 
finds that it is not in the public interest at this time to impose an 
automatic roaming obligation. In the absence of a clear showing in the 
record that it would serve the public interest, the Commission believes 
that open access to the non-interconnected features of a competitor's 
network might undercut incentives to differentiate products and could 
chill innovation. It may also adversely affect business decisions to 
build out facilities for facilities-based competition and reduce the 
incentives to access the spectrum through other means such as initial 
spectrum licensing or secondary markets. For these reasons, the 
Commission declines to impose an automatic roaming requirement on non-
interconnected features, such as stand alone dispatch, at this time.
    65. In the Report and Order, the Commission also declines to impose 
an affirmative obligation on CMRS carriers to post their roaming rates. 
The Commission notes that roaming agreements are generally confidential 
and filing them would impose administrative costs on the carriers. In 
light of the adoption of an automatic roaming rule, the Commission 
finds that the available remedies for redress are sufficient to address 
disputes that may arise. Therefore, the Commission finds it unnecessary 
to burden CMRS carriers by requiring them to file roaming agreements.

F. Report to Congress

    66. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act.\77\ In addition, the Commission will send a copy of the Report and 
Order, including the FRFA, to the Chief Counsel for Advocacy of the 
SBA. A copy of the Report and Order and the FRFA (or summaries thereof) 
will also be published in the Federal Register.\78\
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    \77\ See 5 U.S.C. 801(a)(1)(A).
    \78\ See 5 U.S.C. 604(b).
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Ordering Clauses

    67. Accordingly, it is ordered that, pursuant to the authority 
contained in Sections 1, 4(i), 201, 202, 251(a), 253, 303(r), and 
332(c)(1)(B) of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i), 201, 202, 251(a), 253, 303(r), and 332(c)(1)(B), and 
Section 1.425 of the Commission's rules, 47 CFR 1.425, this Report and 
Order and FNPRM is hereby adopted.
    68. It is further ordered that Sections 20.3 and 20.12 of the 
Commission's rules are amended as specified in Appendix A, and such 
rule amendments shall be effective 60 days after the date of 
publication of the text thereof in the Federal Register.
    69. It is further ordered that the Joint Petition for Commission 
Inquiry Pursuant to Section 403 of the Communications Act filed by 
AIRPEAK Communications, LLC, Airtel Wireless LLC, Cleveland Unlimited, 
Inc., Leap Wireless International, Inc., MetroPCS Communications, Inc., 
Punxsutawney Communications, Rural Telecommunications Group, Inc., and 
Southern Communications Services, Inc. d/b/a SouthernLINC Wireless, on 
April 25, 2006 is hereby denied.
    70. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order and the FNPRM, including the Final 
Regulatory Flexibility Analysis and the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Part 20

    Communications common carriers, Communications equipment, Radio.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 20 as follows:

PART 20--COMMERCIAL MOBILE RADIO SERVICES

0
1. The authority citation for part 20 continues to read as follows:

    Authority: 47 U.S.C. 154, 160, 251-254, 303 and 332 unless 
otherwise noted.


0
2. Section 20.3 is amended by adding the following terms alphabetically 
to read as follows:


Sec.  20.3  Definitions.

* * * * *
    Automatic Roaming. With automatic roaming, under a pre-existing 
contractual agreement between a subscriber's home carrier and a host 
carrier, a roaming subscriber is able to originate or terminate a call 
in the host carrier's service area without taking any special actions.
* * * * *
    Home Carrier. For automatic roaming, a home carrier is the 
facilities-based CMRS carrier with which a subscriber has a direct 
contractual relationship. A home carrier may request automatic roaming 
service from a host carrier on behalf of its subscribers.
    Home Market. For automatic roaming, a CMRS carrier's home market is 
defined as any geographic location where the home carrier has a 
wireless license or spectrum usage rights that could be used to provide 
CMRS.
    Host Carrier. For automatic roaming, the host carrier is a 
facilities-based CMRS carrier on whose system a subscriber roams when 
outside its home carrier's home market.
* * * * *
    Manual Roaming. With manual roaming, a subscriber must establish a 
relationship with the host carrier on whose system he or she wants to 
roam in order to make a call. Typically, the

[[Page 50074]]

roaming subscriber accomplishes this in the course of attempting to 
originate a call by giving a valid credit card number to the carrier 
providing the roaming service.
* * * * *

0
3. Section 20.12 is amended by revising paragraphs (a) and (c) and 
adding paragraph (d) as follows:


Sec.  20.12  Resale and roaming.

    (a)(1) Scope of Manual Roaming and Resale. Paragraph (c) of this 
section is applicable to providers of Broadband Personal Communications 
Services (part 24, subpart E of this chapter), Cellular Radio Telephone 
Service (part 22, subpart H of this chapter), and specialized Mobile 
Radio Services in the 800 MHz and 900 MHz bands (included in part 90, 
subpart S of this chapter) if such providers offer real-time, two-way 
switched voice or data service that is interconnected with the public 
switched network and utilizes an in-network switching facility that 
enables the provider to re-use frequencies and accomplish seamless 
hand-offs of subscriber calls. The scope of paragraph (b) of this 
section, concerning the resale rule, is further limited so as to 
exclude from the requirements of that paragraph those Broadband 
Personal Communications Services C, D, E, and F block licensees that do 
not own and control and are not owned and controlled by firms also 
holding cellular A or B block licenses.
    (2) Scope of Automatic Roaming. Paragraph (d) of this section is 
applicable to CMRS carriers if such carriers offer real-time, two-way 
switched voice or data service that is interconnected with the public 
switched network and utilizes an in-network switching facility that 
enables the carrier to re-use frequencies and accomplish seamless hand-
offs of subscriber calls. Paragraph (d) of this section is also 
applicable to the provision of push-to-talk and text-messaging service 
by CMRS carriers.
* * * * *
    (c) Manual Roaming. Each carrier subject to paragraph (a)(1) of 
this section must provide mobile radio service upon request to all 
subscribers in good standing to the services of any carrier subject to 
paragraph (a)(1) of 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.
    (d) Automatic Roaming. Upon a reasonable request, it shall be the 
duty of each host carrier subject to paragraph (a)(2) of this section 
to provide automatic roaming to any technologically compatible home 
carrier, outside of the requesting home carrier's home market, on 
reasonable and nondiscriminatory terms and conditions.
[FR Doc. E7-17122 Filed 8-29-07; 8:45 am]
BILLING CODE 6712-01-P