00-29773. Automatic and Manual Roaming Obligations Pertaining to Commercial Mobile Radio Services

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this notice of proposed rulemaking (NPRM), we initiate a new proceeding to consider whether the Commission should adopt an “automatic” roaming rule that would apply to Commercial Mobile Radio Service (CMRS) systems and whether we should sunset the “manual” roaming requirement that currently applies to those systems.

DATES:

The agency must receive comments on or before January 5, 2001, and reply comments on or before February 5, 2001.

FOR FURTHER INFORMATION CONTACT:

Paul Murray, Wireless Telecommunications Bureau, at [phone]; additional information concerning the information collections contained in this document contact Judy Boley at [phone], or via the Internet at [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Federal Communications Commission's (the Commission) Notice of Proposed Rulemaking, FCC 00-361, in WT Docket No. 00-193, adopted on October 4, 2000 and released on November 1, 2000. The full text of this NPRM is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, N.W., Washington, D.C. 20037. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Martha Contee at [phone] or TTY [phone].

Synopsis of Memorandum Opinion and Order

I. Introduction

1. In this notice of proposed rulemaking (NPRM), we initiate a new proceeding to consider whether the Commission should adopt an “automatic” roaming rule that would apply to Commercial Mobile Radio Service (CMRS) systems and whether we should sunset the “manual” roaming requirement that currently applies to those systems. The Commission recently terminated its previous consideration of these roaming issues in Docket No. 94-54. In light of the significant growth and development during the last few years of CMRS services, we believe that a new docket dedicated solely to roaming issues best ensures that we will have up-to-date information on whether roaming services should be regulated.

II. Summary of the Notice of Proposed Rulemaking

A. Current Requirements

2. Prior to 1996, the Commission's rules required only cellular carriers to offer manual roaming. In the Commission's 1996 Second Report and Order and accompanying Third NPRM, 11 FCC Rcd 9462, published 61 FR 44026 (Aug. 27, 1996), we considered the imposition of manual and automatic roaming obligations on CMRS providers generally. In the Second Report and Order, we determined that the availability of roaming was important to the development of nationwide, competitive wireless voice telecommunications, and that during the period of systems build-out market forces alone might not cause roaming to become widely available. Accordingly, we extended the Commission's then-existing manual roaming rule requiring cellular carriers to serve individual roamers to include both broadband PCS and “covered” SMR providers.

3. In the Third NPRM, the Commission invited additional comment on both automatic and manual roaming asking whether the Commission should promulgate any rule governing covered providers' obligations to provide automatic roaming service. The Third NPRM further posited that the market would likely render any automatic roaming rule unnecessary five years after the last group of initial licenses for broadband PCS spectrum was awarded, and it asked whether any automatic roaming rule, as well as the existing manual roaming rule, should be sunset at that time.

4. In July 2000, the Commission generally affirmed the manual roaming requirement in its Third Report and Order and Memorandum Opinion and Order on Reconsideration, CC Docket No. 94-54, FCC 00-251 (rel. Aug. 28, 2000) (Manual Roaming Order on Reconsideration), published 65 FR 58477 (Sep. 29, 2000). However, the Manual Roaming Order on Reconsideration changed the definition of which CMRS providers were “covered” and extended the rule's coverage to certain data providers. Thus the manual roaming requirement, as amended, applies to all cellular, broadband PCS, and SMR providers that 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 reuse frequencies and accomplish seamless hand-offs of subscriber calls. The Commission also terminated CC Docket No. 94-54 finding that changes in the market and technology had rendered the record stale.

C. Proposed Rule Changes

5. In this document, we invite comments on: (1) Whether we should adopt an automatic roaming requirement that would apply to certain CMRS providers; and (2) whether we should, either now or in the future, sunset the existing manual roaming requirement placed on those providers. Those wishing to file comments should pay close attention to the specific requests for information made in the NPRM.

Procedural Matters

A. Regulatory Flexibility Act

6. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the potential regulatory actions on which comment is requested in this Notice of Proposed Rulemaking. The IRFA is set forth in the attached Appendix. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the rest of this Notice of Proposed Rulemaking, as set forth in Section IV(C), infra, and they must have a separate and distinct heading designating them as responses to the IRFA. The Commission's Office of Public Affairs, Reference Operations Division, will send a copy of this Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the RFA. In addition, this Notice of Proposed Rulemaking, including the IRFA (or summaries thereof), will be published in the Federal Register.

B. Ex Parte Rules

7. This document initiates and constitutes a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations relating to the Notice of Proposed Rulemaking are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. Other rules pertaining to oral and written presentations are set forth in § 1.1206(b) as well. Interested parties are to file with the Secretary, FCC, and serve International Transcription Services (ITS) with copies of any written ex parte presentations or summaries of oral ex parte presentations in these proceedings in the manner specified below for filing comments.

C. Filing Procedures

8. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments on or before January 5, 2001, and reply comments on or before February 5, 2001. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

9. Comments filed through the ECFS can be sent as an electronic file via the Internet to <http://www.fcc.gov/​e-file/​ecfs.html>. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to [e-mail], and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

10. Parties who choose to file by paper must file an original and four copies of each filing. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 Twelfth Street, S.W.; TW-A325; Washington, D.C. 20554.

11. Regardless of whether parties choose to file electronically or by paper, parties should also file one copy of any documents filed in this docket with the Commission's copy contractor, International Transcription Services, Inc., 445 Twelfth Street, S.W., Room CY-B402, Washington, D.C. 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center, 445 12th Street, S.W., Washington, D.C. 20554.

12. Comments and reply comments must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments must also comply with § 1.49, 47 CFR 1.49, and all other applicable sections of the Commission's rules. We also direct all interested parties to include the name of the filing party and the date of the filing on each page of their comments and reply comments. All parties are encouraged to utilize a table of contents, regardless of the length of their submission.

Initial Regulatory Flexibility Analysis

13. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on this NPRM provided above in Section IV(C), and they must have a separate and distinct heading designating them as responses to the IRFA. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the RFA. In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

A. Need for and Objectives of the Proposed Rules

14. This NPRM requests comment on two issues that pertain to the regulation or possible regulation of certain commercial mobile radio service (CMRS) providers' obligations. First, the NPRM requests comment on whether the Commission should, either now or in the future, sunset the existing “manual” roaming requirement. The existing manual roaming rule requires that covered cellular, broadband Personal Communications Services (PCS) and Specialized Mobile Radio (SMR) carriers make service available to individual users upon request, so long as the roamer's handset is technically capable of accessing their services. “Manual” roaming is the most rudimentary form of roaming; it is the only form of roaming available when there is no pre-existing contractual relationship between a subscriber, or the subscriber's home system, and the system on which the subscriber wants to roam. In order to make or receive a call, the subscriber must establish such a relationship. Typically, the “manual” roamer accomplishes this by attempting to originate a call by giving a valid credit card number to the carrier providing roaming service. Specifically, the NPRM requests comment on whether the “manual” roaming rule should sunset on five years after the last group of initial licenses are issued for broadband spectrum, that is, November 24, 2002.

15. Second, the NPRM requests comment on whether the Commission should adopt an “automatic” roaming requirement that would apply to CMRS providers, and if so, how it should be designed and implemented and for what period of time. “Automatic” roaming permits a subscriber to make and receive calls simply by turning on his or her phone, and it requires an agreement between the home and roamed-on systems. Specifically, the NPRM seeks comment on whether it should adopt a rule requiring carriers that enter “automatic” roaming agreements with any other carrier to make like agreements available to “similarly situated” providers under non-discriminatory rates, terms, and conditions. The Commission also seeks comment on the potential costs of an “automatic” roaming rule, including whether it would impede technological progress, whether it would interfere with free and open competition, and whether it would expose providers to the risk of losses due to fraud. The Commission requests comment on what administrative costs would be involved, and how any rule should be drafted so as to minimize such costs.

B. Legal Basis

16. The potential actions on which comment is sought in this NPRM would be authorized under §§ 1, 2(a), 4(i), 4(j), 201(b), 251(a), 253, 303(r), and 332(c)(1)(B) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 154(j), 201(b), 251(a), 253, 303(r), and 332(c)(1)(B).

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

17. The RFA requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

18. To assist the Commission in its analysis, commenters are requested to provide information regarding which CMRS entities would be affected by the regulations on which the Commission seeks comment in this NPRM. In particular, we seek estimates of how many small entities that might be affected.

19. The possible sunset of the existing “manual” roaming rule, if adopted, would eliminate the requirement that covered cellular, broadband PCS and SMR carriers make service available to individual users upon request, so long as the roamer's handset is technically capable of accessing their services. Sunsetting of this rule would be expected to reduce the existing regulatory burden, if any, on small businesses that must comply with the requirements of the “manual” roaming rule.

20. The “automatic” roaming regulations on which the Commission seeks comment, if adopted, would apply to providers of cellular, broadband PCS, and SMR providers that 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 reuse frequencies and accomplish seamless hand-offs of subscriber calls.

Estimates for Cellular Licensees

21. Neither the Commission nor the SBA has developed a definition of small entities applicable to cellular licensees. Therefore, the applicable definition of a small entity is the definition under the SBA rules applicable to radiotelephone (wireless) companies. This provides that a small entity is a radiotelephone company employing no more than 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms from a total of 1,178 such firms which operated during 1992 had 1,000 or more employees. Therefore, even if all twelve of these firms were cellular telephone companies, nearly all cellular carriers were small businesses under the SBA's definition. In addition, we note that there are 1,758 cellular licenses; however, a cellular licensee may own several licenses. In addition, according to the most recent Trends in Telephone Service data, 808 carriers reported that they were engaged in the provision of either cellular service, Personal Communications Service (PCS), or Specialized Mobile Radio Telephone (SMR) service, which are placed together in the data. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of cellular service carriers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 808 or fewer small cellular service carriers that may be affected by any regulations adopted pursuant to this proceeding.

22. Additionally, any rules adopted pursuant to this rulemaking will apply to cellular licensees only if they offer real-time, two-way switched voice or data service that is interconnected with the public switched network and that utilizes an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls. Although the Commission does not have definitive information, we estimate that most or all small business cellular licensees offer services meeting this description.

Estimates for Broadband PCS Licensees

23. The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of less than $40 million or less in the three previous calendar years. For Block F, an additional classification 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. These regulations defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses within the SBA-approved definition bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C 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. Based on this information, we conclude that the number of small broadband PCS licensees will include the 90 winning C Block bidders and the 93 qualifying bidders in the D, E, and F blocks, for a total of 183 small entity PCS providers as defined by the SBA and the Commission's auction rules.

24. Any rule modifications that will be made pursuant to this proceeding will apply to broadband PCS licensees only if they offer real-time, two-way switched voice or data service that is interconnected with the public switched network and that utilizes an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls. Although the Commission does not have definitive information, we estimate that most or all small business broadband PCS licensees offer services meeting this description.

Estimates for SMR Licensees

25. Pursuant to 47 CFR 90.814(b)(1), the Commission has defined “small business” for purposes of auctioning 900 MHz SMR licenses, 800 MHz SMR licenses for the upper 200 channels, and 800 MHz SMR licenses for the lower 230 channels as a firm that has had average annual gross revenues of $15 million or less in the three preceding calendar years. This small business size standard for the 800 MHz and 900 MHz auctions has been approved by the SBA. Any rules adopted pursuant to this NPRM will apply to SMR licensees only if they offer real-time, two-way switched voice or data service that is interconnected with the public switched network and that utilizes an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls. Although the Commission does not have definitive information, we estimate that very few small business, incumbent site-by-site SMR licensees offer services meeting this description. Geographic licensees are considered more likely to offer such services. In all cases, we provide estimates below that are conservative so as to not underestimate the impact on small entities.

26. Sixty winning bidders for geographic area licenses in the 900 MHz SMR band qualified as small businesses under the $15 million size standard. We do not know which of these licensees will offer real-time, two-way switched voice or data service that is interconnected with the public switched network and that utilizes an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls. We conservatively estimate that the number of small business 900 MHz SMR geographic area licensees that could be affected by rule modifications is 60 or fewer.

27. The auction of the 525 800 MHz SMR geographic area licenses for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten (10) winning bidders for geographic area licenses for the upper 200 channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. We do not know which of these licensees will offer real-time, two-way switched voice or data service that is interconnected with the public switched network and that utilizes an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls. Therefore, we conservatively estimate that the number of small business 800 MHz SMR geographic area licensees for the upper 200 channels that could be affected by rule modifications is ten or fewer.

28. The Commission anticipates that a total of 3,853 EA licenses will be auctioned in the lower 230 channels of the 800 MHz SMR service. This figure is derived by multiplying the total number of Economic Areas (EAs) (175) by the number of channel blocks (22) in the lower 230 channels. Three additional upper band channels will be licensed as well. No party submitting or commenting on the petitions for reconsideration giving rise to our Reconsideration of October 8, 1999, commented on the potential number of small entities that might participate in the auction of the lower 230 channels and no reasonable estimate can be made. Therefore, we conclude that the number of 800 MHz SMR geographic area licensees for the lower 230 channels that may ultimately be affected by this rule modification could be as many as 3,853.

29. With respect to licensees operating under extended implementation authorizations, by November 1997 thirty-three licensees with extended implementation authority in the 800 MHz SMR Service were granted two years two complete the buildout of their systems. At this time, our records indicate that twenty-seven licensees with extended implementation authority still exist, but there may be as few as twenty-two remaining as independent entities. The Commission will soon receive filings that will clarify the situation. Until then, we will assume that there are twenty-seven remaining licensees in this category and that they all qualify as small businesses utilizing the SBA's wireless size standard of $15 million or less. However, we do not know how many of these licensees offer real-time, two-way switched voice or data service that is interconnected with the public switched network and that utilizes an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls. Therefore, estimating conservatively, we conclude that the number of small business SMR licensees operating in the 800 MHz and 900 MHz bands under extended implementation authorizations that could be affected by a rule modification is up to 27 entities.

30. The Commission does not have an accurate estimate of the number of incumbent site-by-site SMR licensees, and a reliable figure will not be available until the SMR site-by-site licensees migrate to the Universal Licensing System. Making this estimate is complicated by the number of recent transactions that have occurred in the 800 MHz SMR service. However, our task is also greatly simplified for purposes of this regulatory flexibility analysis because we are looking for a very specific type of SMR licensee. That is, the licensee must: first, qualify as a small business (i.e., average annual gross revenues of $15 million or less in the three preceding calendar years); second, offer real-time, two-way switched voice or data service that is interconnected with the public switched network; and third, use an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls. These criteria greatly restrict the number of SMR providers who could be affected by this new rule. Although there may be SMR carriers who provide such services it is high unlikely that they will be small entities or small businesses given the nature of the SMR providers and the development of that industry. Consequently, even though there may be no licensees that satisfy these criteria, we err on the sake of caution and conclude that 25 small entities may fall into this category.

D. Reporting, Recordkeeping, and Other Compliance Requirements

31. We anticipate that any rules that may be adopted pursuant to this NPRM will impose no reporting or recordkeeping requirements. The only compliance costs likely to be incurred, as a result, are administrative costs to ensure that an entity's practices are in compliance with the rule. The only compliance requirement of the new rules is that licensees subject to any automatic roaming requirement (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 and data service) would have to provide non-discriminatory access to their wireless systems via automatic roaming once they had reached an agreement with any carrier to permit automatic roaming. As noted above in this Initial Regulatory Flexibility Analysis, and in the text of the NPRM, we seek comment on the potential costs of implementing an automatic roaming requirement in this context, including such potential costs on small business.

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

32. 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.^[1]

33. As noted, the possible sunset of the manual roaming rule, if adopted, would be expected to reduce any existing economic impact on small business. Therefore, the only possible negative economic impacts that might arise from this NPRM are those that would be associated with an “automatic” roaming rule.

34. As indicated in the NPRM, were the Commission to propose an “automatic” roaming rule, the subscribers of any carrier requesting that another carrier enter a nondiscriminatory automatic roaming arrangement would have the burden of ensuring that its subscribers were using equipment that is technically capable of accessing the roamed-on carrier's network. Thus, to the extent the roamed-on carrier's network were that of a smaller carrier, the economic burden of having equipment technically capable of accessing the network would not fall on the smaller carrier. Also, we note that an automatic roaming rule, if adopted, would not require a small business to modify its network to accommodate automatic roaming.

35. In this NPRM, the Commission also specifically has requested comments from small businesses that would provide information on the extent to which such a rule would impose costs and administrative burdens on them. For instance, we inquire whether the costs of such a rule would impact smaller carriers disproportionately, such that we should fashion the rule to reach only the larger providers. The Commission will draw on this information when considering whether a rule should be promulgated, and if so, how it can best be drafted to minimize any costs placed on small businesses. Furthermore, we inquire whether adoption of an “automatic roaming” rule would in fact be in the best interests of small businesses. Specifically, in considering whether or not to adopt an “automatic roaming” rule, we inquire of smaller carriers whether such a rule would be most beneficial to such carriers to the extent they may have difficulty obtaining agreements from larger carriers absent such a rule.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

None.

Ordering Clauses

36. Pursuant to the authority of Sections 1, 2(a), 4(i), 4(j), 201(b), 251(a), 253, 303(r), and 332(c)(1)(B) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 154(j), 201(b), 251(a), 253, 303(r), and 332(c)(1)(B), and §§ 1.411 and 1.412 of the Commission's rules, 47 CFR 1.411 and 1.412, this Notice of Proposed Rulemaking is Adopted.

37. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including 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

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Footnotes

1.  5 U.S.C. 603(c).