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Reexaminaton of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services

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Released: May 4, 2011

Federal Communications Commission

FCC 11-52

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Reexamination of Roaming Obligations of
)
WT Docket No. 05-265
Commercial Mobile Radio Service Providers and
)
Other Providers of Mobile Data Services
)

SECOND REPORT AND ORDER

Adopted: April 7, 2011

Released: April 7, 2011

By the Commission: Chairman Genachowski and Commissioners Copps and Clyburn issuing separate
statements; Commissioners McDowell and Baker dissenting and issuing separate statements.

TABLE OF CONTENTS

Heading
Paragraph #
I.
INTRODUCTION .................................................................................................................................. 1
II. BACKGROUND .................................................................................................................................... 3
III. DISCUSSION......................................................................................................................................... 8
A. The Public Interest in a Data Roaming Rule.................................................................................... 9
B. Scope and Requirements of the Data Roaming Rule ..................................................................... 37
C. Legal Authority.............................................................................................................................. 57
D. Dispute Resolution......................................................................................................................... 71
E. Other Issues.................................................................................................................................... 88
IV. PROCEDURAL MATTERS................................................................................................................ 90
A. Final Regulatory Flexibility Analysis ............................................................................................ 90
B. Paperwork Reduction Analysis...................................................................................................... 91
C. Congressional Review Act............................................................................................................. 93
V. ORDERING CLAUSES....................................................................................................................... 94
APPENDICES
Appendix A - Final Rules
Appendix B - List of Commenters and Reply Commenters
Appendix C - Final Regulatory Flexibility Analysis

I.

INTRODUCTION

1.
In this Order, we promote consumer access to nationwide mobile broadband service by
adopting a rule that requires facilities-based providers of commercial mobile data services to offer data
roaming arrangements to other such providers on commercially reasonable terms and conditions, subject
to certain limitations. Widespread availability of data roaming capability will allow consumers with
mobile data plans to remain connected when they travel outside their own provider's network coverage
areas by using another provider's network, and thus promote connectivity for and nationwide access to
mobile data services such as e-mail and wireless broadband Internet access. The rule we adopt today also
serves the public interest by promoting investment in and deployment of mobile broadband networks,
consistent with the recommendations of the National Broadband Plan. The deployment of mobile data

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networks is essential to achieve the goal of making broadband connectivity available everywhere in the
United States, and the availability of data roaming will help ensure the viability of new wireless data
network deployments and thus promote the development of competitive facilities-based service offerings
for the benefit of consumers. Today's actions will therefore advance our goal of ensuring that all
Americans have access to competitive broadband mobile data services.
2.
We adopt the data roaming rule based on our authority under the Act, including several
provisions of Title III, which provides the Commission with authority to manage spectrum and establish
and modify license and spectrum usage conditions in the public interest. This rule will apply to all
facilities-based providers of commercial mobile data services regardless of whether these entities are also
providers of commercial mobile radio service (CMRS).1 To resolve disputes arising pursuant to the rule
we adopt here, we provide that parties may file a petition for declaratory ruling under Section 1.2 of the
Commission's rules or file a formal or informal complaint under the rule established herein depending on
the circumstances specific to each dispute. Also, in order to facilitate the negotiation of data roaming
arrangements, we provide guidance on factors that the Commission could consider when evaluating any
data roaming disputes that might be brought before the agency.

II.

BACKGROUND

3.
Since the early days of commercial mobile services, the Commission has taken a number
of actions to promote the availability of roaming to American consumers as mobile services have evolved.
The Commission first adopted "manual" roaming requirements in 1981 as part of the original cellular
service rules, finding that such requirements would further the public interest in promoting the availability
of mobile communications service.2 In 1996, the Commission extended the original cellular "manual"
roaming rules to the newly established broadband Personal Communications Services (PCS), as well as
certain Specialized Mobile Radio (SMR) carriers, provided that the roamers' handsets are "technically
capable" of accessing the roamed-on ("host") network.3


1 For purposes of this proceeding, "commercial mobile data service" is defined as any mobile data service that is not
interconnected with the public switched network but is (1) provided for profit; and (2) available to the public or to
such classes of eligible users as to be effectively available to the public. 47 C.F.R. 20.12. The current roaming
obligation in Section 20.12 applies to CMRS carriers' provision of mobile voice and data services that are
interconnected with the public switched network, as well as their provision of text messaging and push-to-talk
services. The data roaming rule adopted herein will cover mobile services that fall outside the scope of the current
automatic roaming obligation if provided for profit; and available to the public or to such classes of eligible users as
to be effectively available to the public.
2 See An Inquiry Into the Use of the Bands 825-845 MHz and 870-890 MHz for Cellular Communications Systems
and Amendment of Parts 2 and 22 of the Commission's Rules Relative to Cellular Communications Systems, CC
Docket No. 79-318, Report and Order, 86 FCC 2d 469 (1981) (Cellular Report & Order) (adopting requirement in
then Section 22.911(b) of the Commission's rules that base stations render service to properly licensed roamers).
Roaming services that subscribers receive are "manual" or "automatic." For manual roaming, the subscriber must
establish a relationship directly with the host provider on whose system the subscriber wants to roam in order to
make a call. Typically, the roaming subscriber accomplishes this in the course of attempting to originate a call by
giving the host provider a valid credit card number. With automatic roaming, the roaming subscriber is able to
immediately originate or terminate a call without first taking any actions to establish a relationship with the host
provider. Instead, automatic roaming occurs pursuant to a pre-existing contractual agreement between the
subscriber's own provider and the host provider.
3 See Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Service Providers, CC Docket
No. 94-54, Second Report and Order and Third Notice of Proposed Rulemaking, 11 FCC Rcd 9462, 9470-71 13
(1996) (Interconnection and Resale Second Report and Order); 47 C.F.R. 20.12(c).
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4.
In the Report and Order adopted by the Commission in 2007, the Commission clarified
that "automatic" roaming is a common carrier obligation for CMRS carriers generally, requiring them to
provide automatic roaming services to other carriers upon reasonable request on a just, reasonable, and
non-discriminatory basis pursuant to Sections 201 and 202 of the Communications Act.4 The
Commission found that the services covered by the automatic roaming obligation include the same
services subject to manual roaming and other regulatory obligations 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.5 The Commission established the presumption that a request for
automatic roaming is reasonable under Sections 201 and 202 if the requesting carrier's network is
technologically compatible with the host carrier's network.6 The Commission also extended the scope of
the automatic roaming obligation beyond interconnected voice service to include both push-to-talk and
text-messaging provided that certain conditions are met.7
5.
In our 2010 Order on Reconsideration, we took further action to increase consumers'
access to roaming services by eliminating the "home roaming exclusion" that had been adopted in the
Report and Order. In particular, we found that the exclusion in many circumstances had discouraged
facilities-based competition.8 The revised rule that we adopted provides that "[u]pon a reasonable
request, it shall be the duty of each host carrier subject to . . . [Section 20.12(a)(2) of our rules] . . . to
provide automatic roaming to any technologically compatible, facilities-based CMRS carrier on
reasonable and not unreasonably discriminatory terms and conditions, pursuant to Sections 201 and 202
of the Communications Act, 47 U.S.C. Sections 201 and 202."9 We affirmed that carriers must provide
push-to-talk roaming upon reasonable request.10 We also provided additional guidance on various factors
that the Commission could consider when evaluating any roaming disputes that were brought before the
agency.
6.
Data Roaming. In the Further Notice issued in 2007, the Commission sought comment
on whether it should extend the automatic roaming obligation generally to non-interconnected data


4 Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, WT Docket No. 05-265,
Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 15817, 15818 1 (2007) (Report and
Order
and Further Notice, respectively).
5 Id. at 15837 54.
6 Id. at 15831 33. The Commission also codified this automatic roaming obligation in section 20.12(d) of its rules.
Id. at 15840 63; 47 C.F.R. 20.3, 20.12(d).
7 Report and Order, 22 FCC Rcd at 15837 54-55.
8 Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of
Mobile Data Services, WT Docket No. 05-265, Order on Reconsideration and Second Further Notice of Proposed
Rulemaking
, 25 FCC Rcd 4181, 4190 18 (2010) (Order on Reconsideration and Second Further Notice,
respectively).
9 47 C.F.R. 20.12(d). That rule also provides that the Commission "shall presume that a request by a
technologically compatible CMRS carrier for automatic roaming is reasonable pursuant to Sections 201 and 202 of
the Communications Act, 47 U.S.C. Sections 201 and 202." Id. The rule states that this "presumption may be
rebutted on a case-by-case basis. The Commission will resolve automatic roaming disputes on a case-by-case basis,
taking into consideration the totality of the circumstances presented in each case." Id.
10 Order on Reconsideration, 25 FCC Rcd at 4204 45.
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services or features, including information services or other non-CMRS services offered by CMRS
carriers.11 The Commission also sought comment on the legal bases for imposing a roaming obligation
on mobile wireless broadband Internet access services.12
7.
In the Second Further Notice that we adopted in conjunction with the Order on
Reconsideration in 2010, we sought to refresh and further develop the record by requesting additional
comment on whether to extend roaming obligations to mobile data services, including mobile broadband
Internet access, that are provided without interconnection to the public switched telephone network.13 We
also sought comment on whether any such obligations should apply only to service providers that are also
CMRS providers or more broadly to facilities-based mobile data service providers whether or not they
also provide CMRS.14 Among other things, we sought comment on the importance of data roaming, the
potential impact on incentives for investment and innovation in mobile broadband services if roaming
requirements were extended to data roaming, and the appropriate scope of any data roaming requirement,
including consideration of the technical issues that data roaming requirements might raise with respect to
a provider's network capacity and security.15 In addition, we sought further comment on our legal
authority to establish data roaming obligations to the extent that we concluded that adopting data roaming
requirements would serve the public interest.16 Finally, we sought comment on the appropriate process
for dispute resolution, whether we should provide the same process for data roaming requests as for other
roaming requests, and whether we should adopt measures to require or encourage parties to employ
alternative vehicles for resolving disputes such as arbitration.17

III.

DISCUSSION

8.
In this Second Report and Order, we conclude that it is in the public interest to establish
requirements to promote the availability of data roaming arrangements, as set forth below. We first
discuss our determination to require that facilities-based providers of commercial mobile data services
offer data roaming arrangements to other such providers on commercially reasonable terms and


11 Further Notice, 22 FCC Rcd at 15845 77. We do not address in this Order "interconnected service," as defined
in 47 U.S.C. 332(d)(2) and our rules.
12 The Commission noted that it had determined that mobile wireless broadband Internet access service is an
information service, and that it is not CMRS. See Further Notice, 22 FCC Rcd at 15846 81 (citing Appropriate
Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT Docket No. 07-53, 22
FCC Rcd 5901 (2007) (Wireless Broadband Internet Access Classification Order)).
13 The Commission had received several proposals concerning data roaming in response to the Further Notice,
including a request by SpectrumCo that the Commission reconsider its decision to limit the automatic roaming
obligation only to services that use the public switched network. See Second Further Notice, 25 FCC Rcd at 4212-
13 63. The Commission noted that issues in SpectrumCo's petition for reconsideration were being addressed in the
Second Further Notice. Id. at 4185 9.
14 Second Further Notice, 25 FCC Rcd at 4212 62. The Commission also sought comment on the specific
proposals that had been submitted in response to the Further Notice, as well as on any other proposals for addressing
data roaming obligations. Id. at 4212-13 63.
15 Second Further Notice, 25 FCC Rcd at 4218-24 72-91.
16 Id. at 4213-18 64-71.
17 Second Further Notice, 25 FCC Rcd at 4223-24 91. The deadline for comments on the Second Further Notice
was June 14, 2010, and the deadline for reply comments was July 12, 2010. A list of commenters and reply
commenters is in Appendix B of this Order.
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conditions. We then describe in more detail the scope and the limitations of the data roaming rule, taking
into account the relevant policy and technical issues. We next provide a full discussion of the legal basis
for our adoption of this rule pursuant to our authority under the Act. In order to address disputes relating
to the rule we adopt, we also set out a complaint process for such disputes, and also permit disputes to be
brought through petitions for declaratory ruling, depending on the circumstances specific to each dispute.
We provide that commercial reasonableness will be determined based on the totality of the circumstances,
and provide guidance on factors that the Commission may consider in resolving disputes. For example,
providers of commercial mobile data services may negotiate commercially reasonable measures to
safeguard quality of service against network congestion that may result from data roaming traffic or to
prevent harm to their networks.

A.

The Public Interest in a Data Roaming Rule

9.
Background. In the Second Further Notice, we underscored that broadband deployment
is a key priority for the Commission. We stated that the policy goals that informed our determinations
regarding the scope of roaming obligations for interconnected voice and data would also guide our
consideration with respect to commercial mobile data services that of facilitating the provision of
mobile services in a manner that provides the greatest benefit to consumers.18 Specifically, we sought to
ensure that consumers have access to seamless coverage nationwide, to provide the incentives for new
entrants and incumbent providers to invest and innovate by using available spectrum and constructing
wireless network facilities on a widespread basis, and to promote competition for commercial mobile
broadband business by multiple providers.19
10.
In seeking comment on how best to serve our policy goals, we noted the mobile
broadband industry is in a critical stage of development, with a rapidly evolving mobile broadband
ecosystem and a rapid increase in mobile broadband data use.20 Accordingly, we sought to develop a full
record on whether to adopt data roaming requirements. We sought comment on the importance of
roaming for commercial mobile data services, and we asked in what ways data roaming arrangements will
affect competitive entry and network deployment in the data services marketplace.21 We inquired about
current roaming arrangements for commercial mobile data services and the extent to which data
subscribers make use of such roaming arrangements.22 We sought comment as well on how deployment,
competition, and consumer access to services would be affected in the commercial mobile broadband
marketplace depending on whether we adopted any data roaming obligations.23 With respect to
investment incentives, we sought comment on the impact that extending roaming requirements to wireless
data services would have on the incentives of providers to invest in advanced data networks and fully use
available spectrum.24 We also requested comment on how roaming rules for non-interconnected services,
if any, should compare to our current automatic roaming rules for voice services.25


18 See Second Further Notice, 25 FCC Rcd at 4207 50, 4211 60.
19 Id.
20 Id. at 4207-13 50-54, 60, 61, 63.
21 Id. at 4218 72.
22 Id. at 4218 74.
23 Id.
24 Id. at 4218-19 75.
25 Id. at 4212 63.
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11.
The overwhelming majority of commenters favor our adoption of roaming rules to
promote the availability of commercial mobile data services. These commenters include a wide variety of
regional and rural providers and two nationwide mobile service providers,26 as well as consumer interest
organizations27 and equipment and software manufacturers.28 They argue that to be competitive in the
commercial mobile marketplace and to meet the demand of their customers, it is critical that providers be
able to provide data roaming services to their customers, particularly given the transition of mobile
wireless to a more data-centric mobile marketplace.29 In this regard, these commenters observe that the
volume of traffic for mobile services is shifting away from interconnected services to non-interconnected
services,30 and they highlight the fact that data usage has risen sharply over the past few years and will
continue to do so as a result of the increased adoption of smartphones and the increased data consumption
per device.31 These commenters also assert that adoption of a data roaming requirement is necessary to
ensure the nationwide seamless connectivity to mobile services that consumers have come to expect.32
They contend that such a requirement is necessary to ensure continued investment and innovation by
existing providers to expand and upgrade broadband data networks, as well as by new entrants seeking to
provide mobile broadband services.33 Further, they assert that providers with data roaming arrangements


26 See, e.g., Blooston Comments at 1; Bright House Comments at 9; Cellular South Comments at 2; Cincinnati Bell
Comments at 4; Clearwire Comments at 2; Leap Comments at 29; MetroPCS Comments at 55; NTCH Comments at
3; NTELOS Comments at 8-9; OPASTCO & NTCA Comments at 2; RCA Comments at 1, RTG Comments at 13;
SkyTerra Comments at 1; SouthernLINC Comments at 41; Sprint Comments at 1, 5; T-Mobile Comments at 1; US
Cellular Comments at 1; BendBroadband Reply Comments at 2-3. See also Letter from Leonard Steinberg and
Elisabeth H. Ross, ACS Wireless, Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Mar.
22, 2011 (ACSW Mar. 22, 2011 Ex Parte).
27 See, e.g., Free Press Comments at 2; Media Access Comments at 9.
28 See Letter from Phillip Berenbroick, Computer & Communications Industry Association, to Marlene Dortch,
Secretary, FCC, WT Docket No. 05-265, filed Oct. 27, 2010.
29 See, e.g., Cellular South Comments at 19; Cincinnati Bell Comments at 3; Leap Comments at 2; Sprint Comments
at 7-9; T-Mobile Comments at 5-6; US Cellular Comments at i, 2-3. See also Implementation of Section 6002(b) of
the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive Market Conditions
With Respect to Mobile Wireless, Including Commercial Mobile Services, Fourteenth Report, WT Docket No. 09-
66, FCC 10-81, at 5-6 4 (rel. May 20, 2010), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-
10-81A1.pdf (noting the "transition to a data-centric market" where "data traffic has grown significantly, due to the
increased adoption of smartphones") ("Fourteenth Competition Report").
30 See, e.g., T-Mobile Comments at 5-6.
31 See, e.g., Sprint Comments at 8, citing Fourteenth Competition Report, FCC 10-81, at 5 4.
32 See, e.g., Leap Comments at 1-3; Letter from Thomas J. Sugrue, T-Mobile, to Marlene H. Dortch, Secretary,
FCC, WT Docket No. 05-265, filed Feb. 2, 2011 (T-Mobile Feb. 2, 2011 Ex Parte) at 3 & n.8 (asserting that T-
Mobile "will continue to require roaming arrangements to achieve a nationwide service footprint in those regions of
the country where it does not yet have its own facilities. . . . These markets include areas in virtually every state."). .
33 See, e.g., BendBroadband Reply Comments at 5; Blooston Reply Comments at 6-8; Cellular South Comments at
2, Declaration of Ben Pace, Chief Financial Officer; MetroPCS Comments at 4-5, 8; Letter from Maria Cattafesta,
Senior Counsel, Government Affairs, Sprint to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed
Sept. 7, 2010 at 2-3 (Sprint and T-Mobile Sept. 7th Ex Parte); Letter from Howard J. Symons, Counsel to T-Mobile
to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Nov. 10, 2010 at 2; Letter from Daniel L.
Brenner, Counsel to Bright House Networks, to Marlene Dortch, FCC, WT Docket No. 05-265, filed Dec. 3, 2010
(Bright House Dec. 3, 2010 Ex Parte), Affidavit of Leo Cloutier, Senior VP; T-Mobile Feb. 2, 2011 Ex Parte at 2-
(continued....)
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will continue to have the necessary and appropriate incentives to invest in and expand their networks in
order to reduce their payments for data roaming,34 to compete more effectively with larger providers in
areas where their customers roam substantially,35 and to fulfill regulatory buildout obligations.36 Those
favoring a data roaming rule also assert that, given increasing consolidation and other constraints,
roaming arrangements for commercial mobile data services at present are often difficult to obtain,37 and
when available, are offered on unreasonable terms and conditions.38
12.
By contrast, only AT&T and Verizon Wireless oppose the Commission's adoption of a
data roaming requirement.39 AT&T and Verizon Wireless argue that providers are already able to obtain
nationwide coverage through data roaming arrangements without a regulatory requirement.40 They also
contend that providers in the commercial mobile wireless marketplace are already making extensive
investments in advanced data networks, wireless competition is thriving, and therefore there is no market
failure or no consumer harm and, thus, there is no justification for regulatory intervention.41 AT&T and
(Continued from previous page)


4; Letter from Charles W. McKee, Vice President, Government Affairs, Sprint to Marlene H. Dortch, Secretary,
FCC, WT Docket No. 05-265, filed Feb. 7, 2011 at 2-3 (Sprint Feb. 7, 2011 Ex Parte)..
34 Leap Comments at 6; MetroPCS Comments at 47; SouthernLINC Comments at 39 (stating that while the initial
cost of deploying new facilities and services can be high, the costs of relying on roaming can be significantly
higher); Leap Reply Comments at 5-6; T-Mobile Reply Comments at 14.
35 See, e.g., Leap Reply Comments at 4.
36 SouthernLINC Comments at 39-40; NTELOS Reply Comments at 5; T-Mobile Reply Comments at 14.
37 See ,e.g., Bright House Comments at 8-9; Cellular South Comments at 21; Cincinnati Bell Comments at 5-6;
OPASTCO & NTCA Comments at 2, 4-5; RTG Comments at 9-10; T-Mobile Comments at 7-8; MetroPCS Reply
Comments at 11-12; see also ACSW Mar. 22, 2011 Ex Parte at 2.
38 See, e.g., Cellular South Comments at 21; T-Mobile Comments at 10; BendBroadband Reply Comments at 4-5.
39 See generally, AT&T Comments, and Verizon Wireless Comments. In its initial comments, ACSW also opposed
a data roaming obligation, arguing inter alia that "ACSW's experience demonstrates that it is not necessary for the
FCC to impose a mandatory data roaming requirement in these market conditions." ACSW Comments at 1-2, 6-7.
In its March 22, 2011 Ex Parte, however, ACSW changed its position, stating that, "[h]aving evaluated ex parte
submissions in this docket identifying recurring problems encountered by rural and regional wireless carriers
seeking data roaming agreements with the large national carriers and reflecting on our own experiences negotiating
agreements with these carriers, ACSW now sees merit in adoption of an automatic data roaming obligation."
ACSW Mar. 22, 2011 Ex Parte.
40 AT&T Comments at 1-2, 32, 37; Verizon Wireless Comments at 3-4, 7-9; Verizon Wireless Reply Comments at
4-7, 10-13. For example, Verizon Wireless asserts that as of January 18, 2011, it has 65 active roaming partners,
that approximately 75% of these have requested data roaming arrangements, that approximately 85% of the
providers that want data roaming have obtained an agreement, and that most of the rest are currently in negotiations
for such an agreement. Letter from Tamara Preiss, Verizon, to Marlene H. Dortch, Secretary, FCC, WT Docket No.
05-265, filed Jan. 18, 2011 (Verizon Wireless Jan. 18, 2011 Ex Parte). It also indicates that over 60% of those data
roaming agreements are for EV-DO roaming, and that between April 2010 and January 2011, it has entered into 16
additional EV-DO roaming agreements. Id. See also Letter from Tamara Preiss, Verizon, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 05-265, filed Apr. 13, 2010 (Verizon Wireless Apr. 13, 2010 Ex Parte), at 4; Letter
of Tamara Preiss, Vice President, Regulatory Affairs, Verizon Wireless, to Marlene H. Dortch, Secretary, FCC, WT
Docket No. 05-265, filed Nov. 5, 2010 (Verizon Wireless Nov. 5, 2010 Ex Parte), at 2.
41 See AT&T Comments at 17, 48-53; Verizon Wireless Comments at 3-7, 9-16; AT&T Reply Comments at 37-41.
See also Letter from Joan Marsh, AT&T, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Feb.
4, 2011 (AT&T Feb. 4, 2011 Ex Parte) at 2 (noting a T-Mobile announcement that it will add approximately 5,000
(continued....)
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Verizon Wireless also assert that a roaming obligation will discourage investment and lead to less
efficient spectrum use by both roaming providers and host providers, particularly in rural areas.42 AT&T
argues that mandatory roaming will weaken host providers' incentives to invest because it "impedes"
their ability to "`monetize' their enormous investment in broadband networks" by "depriv[ing] them of
the ability to compete on the basis of the scope and quality of their network coverage."43 AT&T also
argues host providers will be reluctant and less able to make new investments when they will have "no
control over the terms and conditions under which they will carry the substantial and unpredictable data
traffic of others in addition to their own."44
13.
Discussion. After carefully considering the arguments in the record, we conclude that it
will serve the public interest to adopt a data roaming rule. Specifically, we require providers of
commercial mobile data services to offer data roaming arrangements on commercially reasonable terms
and conditions, subject to specified limitations as set forth below, pursuant to our authority under the
Communications Act. We conclude that adopting a roaming rule tailored for mobile data services will
best promote consumer access to seamless mobile data coverage nationwide, appropriately balance the
incentives for new entrants and incumbent providers to invest in and deploy advanced networks across the
country, and foster competition among multiple providers in the industry, consistent with the National
Broadband Plan. Broadband deployment is a key priority for the Commission, and the deployment of
commercial mobile data networks will be essential to achieve the goal of making broadband connectivity
available everywhere in the United States. As discussed above, our determination to adopt a commercial
mobile data roaming rule is supported by the overwhelming majority of commenters and evidence in the
record.
14.
Commercial mobile data services provided over advanced mobile broadband
technologies have become an increasingly significant part of the lives of American consumers and the
shape of the mobile industry.45 Mobile data services increasingly are used for a variety of both personal
and business purposes, including back-up communications during emergencies and for accessibility.46
Data traffic has risen sharply over the past few years as a result of the increased adoption of smartphones
combined with increased data consumption per device. Our data roaming rule will maximize consumers'
ability to use and benefit from wireless broadband data services wherever they are by enhancing the
ability of all facilities-based providers, including small and regional providers, to provide nearly
nationwide data coverage through roaming arrangements.
15.
As data services increasingly become the focus of the mobile wireless services,
(Continued from previous page)


new cell sites, and that this decision was made "despite the lack of any unwarranted broadband data roaming
mandate.").
42 See AT&T Comments at 42-48; Verizon Wireless Comments at 9-16; AT&T Reply Comments at 28-31; Verizon
Wireless Reply Comments at 20-23.
43 AT&T Reply Comments at 29.
44 AT&T Comments at 44-45.
45 For purposes of this Order, "mobile broadband" refers to mobile data services provided using Third-Generation
(3G) and Fourth-Generation (4G) mobile network technologies, such as CDMA EV-DO (EV-DO),
WCDMA/HSPA, HSPA+, LTE, and WiMAX. For a detailed discussion of the different generations of mobile
wireless network technologies, see Fourteenth Competition Report, at 213, App. B.
46 See, e.g., SouthernLINC Comments at 5-9.
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consumers increasingly expect their providers to offer competitive broadband data services,47 and the
availability of data roaming arrangements can be critical to providers remaining competitive in the mobile
services marketplace.48 We agree that the availability of roaming capabilities is and will continue to be a
critical component to enable consumers to have a competitive choice of facilities-based providers offering
nationwide access to commercial mobile data services. As more and more consumers use mobile devices
to access a wide array of both personal and business services, they have become more reliant on their
devices.49 These consumers expect to be able to have access to the full range of services available on
their devices wherever they go.50 Providers with local or regional service areas need roaming
arrangements to offer nationwide coverage, and there may be areas where building another network may
be economically infeasible or unrealistic.51 Even where providers have invested in and built out
broadband networks in a regional service territory, a service provider's inability to offer roaming easily
can deter customers from subscribing. For example, Cincinnati Bell represents that "[d]ue to the limited
availability of nationwide roaming partners for 3G and 4G services, [it] is seeing a steady defection of its
customers to the national carriers even though Cincinnati Bell offers a superior network in its operating
area."52 Availability of such roaming arrangements also may be particularly important for consumers in
rural areas -- where mobile data services may be solely available from small rural providers.53 According
to BendBroadband, its mobile broadband product is "not commercially viable for most consumers
primarily because we cannot offer mobility outside of our service area, due to our inability to secure
reasonable rates and terms for data roaming."54 A data roaming requirement will therefore help to ensure
that, as consumers become increasingly reliant on wireless devices, continuity of spectrum-based services
is preserved across networks and geographic regions.
16.
We also conclude that the data roaming rule that we adopt today will encourage
investment in and deployment of broadband networks by multiple service providers, including large
nationwide providers, regional providers, and small providers. Given that mobile broadband networks,
particularly "fourth-generation" networks, are still at an early stage of development, significant network


47 BendBroadband Reply at 2; Blooston Rural Carriers Comments at 2; Clearwire Comments at 1; Leap Comments
at 7; RCA Comments at 8; SouthernLINC Comments at 4-5, 32; Sprint Comments at 9; T-Mobile Comments at 6.
48 See, e.g., Cellular South Comments at 19; Cincinnati Bell Comments at 3-4; Leap Comments at 2; Sprint
Comments at 7-12; T-Mobile Comments at 5-7.
49 See, e.g., Clearwire Comments at 1; RCA Comments at 13.
50 See, e.g., Blooston Comments at 2-3; MetroPCS Comments at 45-46; NTELOS Comments at 6.
51 See Order on Reconsideration, 25 FCC Rcd at 4192 23. We have found that, in some areas of the country with
very low population densities, it is simply uneconomic for several carriers to build out. Further, we note that it may
be significantly more costly to build out when the carrier only has access to higher spectrum frequencies where
propagation characteristics are less advantageous. Id. See also T-Mobile Reply Comments at 15.
52 Cincinnati Bell Comments at 7.
53 OPASTCO & NTCA Comments at 3-4 ("[M]any rural consumers face a difficult choice when choosing a mobile
data services provider. They can choose the services of a large nationwide carrier and receive service that is quite
often spotty in the rural areas where they live and work. Or, they can choose the mobile data services offered by
their local rural wireless carrier and obtain excellent service in the areas where they live and/or work but lose service
entirely when they travel outside the small geographic license area of that local provider."); SouthernLINC
Comments at 30-31.
54 BendBroadband Reply Comments at 2, 5.
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investment and deployment will also be critical to nationwide broadband access and for the promotion of
competitive choice in broadband services.55 This data roaming rule will promote mobile broadband
network deployment, investment, and competition,56 consistent with the goals of the National Broadband
Plan, by helping to ensure the viability of new data network deployments.57
17.
We are persuaded by the evidence that roaming arrangements help encourage investment
by ensuring that providers wanting to invest in their networks can offer subscribers a competitive level of
mobile network coverage. Roaming arrangements can help provide greater assurance to service providers
that, if they make the investment to expand or upgrade their facilities, they will be able to offer
competitive service options to their customers through a combination of local or regional facilities-based
service and roaming arrangements.58 Sprint and T-Mobile state that data roaming arrangements will
allow service providers to compete more effectively and thus greater certainty in access to such
arrangements will give them "the resources and the confidence to continue to invest in their businesses,
including in the construction of new network infrastructure."59 SouthernLINC explains that "when
carriers are considering whether to invest in the deployment of new technologies and services, the
availability of data roaming assures the carriers that they will be able to meet customers' expectations of
seamless connectivity for these services. This in turn provides carriers with the certainty they need to
move forward with these much-needed investments."60 NTELOS reports that its roaming agreement with
Sprint led to its ability to upgrade virtually its entire network to EV-DO Revision A.61 Clearwire asserts
that a data roaming obligation supports long-term facilities-based entry into new markets, and that once
providers enter into new markets they will continue to build out networks to contain business costs
associated with roaming.62 Further, as argued by several commenters representing rural providers --


55 See, e.g., NTELOS Reply Comments at 5 ("Small and regional carriers like NTELOS are again evaluating
upgrades to their networks, this time for 4G . . . .").
56 See, e.g., Sprint Comments at 9-11; Letter from Charles W. McKee, Vice President, Government Affairs, Sprint,
to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Feb. 7, 2011 (Sprint Feb. 7, 2011 Ex Parte) at
2-3.
57 See, e.g., National Broadband Plan at 3.
58 See, e.g., Cincinnati Bell Comments at 6-7 (asserting that, "[d]ue to the limited availability of nationwide roaming
partners for 3G and 4G services, Cincinnati Bell is seeing a steady defection of its customers to the national carriers
even though Cincinnati Bell offers a superior network in its operating area and attractive rate plans that are available
without a long-term contract"); BendBroadband Reply Comments at 2 ("Our mobile broadband product is not
commercially viable for most consumers primarily because we cannot offer mobility outside of our service area").
See also MetroPCS Comments at 45-46.
59 See Sprint and T-Mobile Sept. 7th Ex Parte at 2-3.
60 SouthernLINC Reply Comments at 6.
61 See NTELOS Comments at 7; NTELOS Reply Comments at 4; see also "NTELOS Announces Amended Resale
with Sprint - EVDO Rev A Upgrade," www.evdoinfo.com/content/view/2036/64/. See also, e.g., SouthernLINC
Comments at 35-37; NTELOS Reply Comments at 5. An upgrade to CDMA2000 1xRTT (1xRTT) technology,
CDMA2000 EV-DO (Evolution-Data Optimized or EV-DO) provides significantly greater maximum data
throughput speeds, with 1xRTT delivering peak mobile data rates of 307 kbps, EV-DO Revision 0 (Rev. 0)
providing a maximum data throughput speed of 2.4 Mbps, and Revision A (Rev. A) providing a maximum of 3.1
Mbps. See Fourteenth Competition Report, at App. B 4. For purposes of this Order, we refer to both EV-DO
technologies collectively as EV-DO.
62 Clearwire Comments at 6.
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Blooston Rural Carriers, OPASTCO and NTCA, RCA, and RTG -- the lack of roaming for commercial
mobile wireless services may deter providers from investing in broadband at the exact time such
investment is sorely needed.63 The Chief Financial Officer of regional provider Cellular South, for
example, states that "investment banks and other sources of investment capital are likely to make the
judgment that a small rural or regional carrier that cannot obtain data roaming agreements with the large
national carriers will find it more difficult to attract and retain customers" and that "[s]uch a judgment
would lead to the withholding of investment capital which, in turn, would hamstring the carrier's efforts
to deploy advanced broadband infrastructure."64 MetroPCS contends that in order to ensure that smaller,
rural and mid-tier carriers invest now in LTE, they need to know that they will have access to LTE
roaming once they have upgraded.65
18.
The availability of roaming arrangements can also provide additional incentives to enter a
market by allowing network providers without a presence in an area a competitive level of local coverage
during the early period of investment and buildout.66 We find that encouraging new entry and local or
regional deployments serves the public interest, given that such network deployments, particularly when
these deployments are coupled with roaming availability beyond the network service area, would provide
consumers with greater competitive choices in mobile broadband. Previously, we found that lack of
roaming can constitute a significant hurdle to new competition and can delay or deter entry into a market
because a provider seeking to provide service in a new geographic area, without the ability to supplement
its networks with roaming and whose initial facilities would necessarily be limited, would be required to
compete with incumbents that had been developing and expanding their networks for many years.67
19.
The record in this proceeding supports these findings. Bright House Networks, for
example, contends that a data roaming requirement would remove a barrier to entry68 and a Senior Vice
President of the company states that such a requirement would be key to Bright House investing more.69
T-Mobile notes that the ability to roam has enabled the company to "build a facilities-based footprint over
time as its customer base grows,"70 and asserts that a roaming rule will enable it to "invest in new


63 See , e.g., Blooston Comments at 2; Cellular South Comments at 20; MetroPCS Reply Comments at 52;
OPASTCO & NTCA Comments at 5-6; RCA Comments at 7-9; NTELOS Reply Comments at 5.
64 Cellular South Comments, Declaration of Ben Pace, Chief Financial Officer, at 20. See also Cellular South Feb.
9, 2011 Ex Parte at 3 (stating that "The capital needed for an extensive deployment of LTE . . . has remained
sidelined as a result of the lingering uncertainty surrounding data roaming and interoperability.").
65 MetroPCS Comments at 43-46.
66 Fourteenth Competition Report at 47 ("To create a customer base, a new facilities-based entrant must provide
network coverage that is sufficient to attract new customers, including enticing customers to switch from existing
service providers. . . . We note that roaming on competitors' networks can offer entrants access to greater network
coverage while they are deploying their own networks.").
67 See Order on Reconsideration, 25 FCC Rcd at 4191 21. See also Resale First Report and Order, 22 FCC Rcd
18455 18465-66 17-18.
68 Bright House Comments at 12.
69 Bright House Dec. 3, 2010 Ex Parte (Affidavit of Leo Cloutier, Senior VP) at 5 (Bright House's entry into data
services market would produce several hundred million dollars in capital investment). See also NTELOS
Comments at 3-7 (stating that before pursuing a 4G upgrade, with a capital outlay of many millions of dollars,
NTELOS must be confident that it will continue to be able to reach agreements on roaming).
70 Letter from Howard J. Symons, for T-Mobile USA, Inc., to Marlene H.Dortch, Secretary, FCC, WT Docket No.
05-265, filed Nov. 10, 2010, at 2.
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facilities in smaller markets that would not be economical to build out unless T-Mobile could use roaming
to serve the adjacent more sparsely populated areas," and thus promote rural investment.71 In addition,
according to US Cellular, new wireless providers entering the wireless marketplace today face far more
daunting prospects than did their predecessors of decades ago unless they can offer their customers both
voice and data roaming on a seamless nationwide basis.72 SkyTerra (now LightSquared) states that the
absence of a data roaming obligation can discourage service providers from entering the market and
building upon existing networks.73 SkyTerra further states that without a data roaming obligation, its
potential customers would likely be discouraged from purchasing terrestrial-based services from
SkyTerra, especially in the initial stages of SkyTerra's network build out.74
20.
Accordingly, we find that availability of roaming arrangements helps provide consumers
with greater competitive choices in mobile broadband by encouraging investment and network
deployments and ensuring that providers wanting to invest in their networks or to enter into a new market
can offer subscribers a competitive level of mobile network coverage and service. By removing barriers
to customer acquisition by providers in smaller or remote areas, the rule we adopt today will encourage
greater use of spectrum and additional sustainable investment in broadband networks serving these areas.
21.
We find the roaming rule that we adopt, discussed in greater detail below, also will
provide incentives for host providers to invest and deploy advanced data networks, and avoid potential
disincentives for those providers to invest. We agree with AT&T and Verizon that there are pro-
competitive benefits that flow from providers differentiating themselves on the basis of coverage in their
licensed service areas, including in rural and remote areas.75 We find that the terms and scope of the
roaming rule that we adopt will protect these benefits, maintain incentives for host providers to invest and
deploy advanced data networks, and avoid potential disincentives for those providers to invest.76 First,


71 Letter from Kathleen O'Brien Ham, T-Mobile USA, Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket No.
05-265, filed Dec. 20, 2010, at 3. See also T-Mobile Comments at 9-10; Leap Reply Comments at 5 ("Without
roaming, carriers, in order to offer service in new areas, would need to invest in building extensive networks before
offering service. Roaming enables carriers to continue their investments while serving their customers in the
interim."); Letter from Charles W. McKee, Sprint Nextel Corporation, to Marlene H. Dortch, Secretary, FCC, WT
Docket No. 05-265, filed Feb. 7, 2011, at 2 ("Sprint is more likely to build additional network facilities in areas
where it can supplement its new network with cost-effective data roaming coverage."); T-Mobile Feb. 2, 2011 Ex
Parte
at 2 ("T-Mobile has been able to build out its network in smaller and rural communities because voice
roaming allowed it to provide service in the very sparsely populated areas adjacent to these communities where
customers often traveled and therefore expected service."). T-Mobile asserts that the availability of voice roaming
has "played an important role" in enabling it "to locate a call center in the state [of Maine], creating jobs and
establishing a presence that attracted a new and growing customer base" and that roaming helped it "to grow to
become a facilities-based provider" in other markets. T-Mobile February 2, 2011 Ex Parte at 3. T-Mobile states that
such other markets include State College, Pennsylvania, Knoxville, Tennessee, and southeastern New Mexico. Id.
72 US Cellular Reply Comments at 3-4.
73 SkyTerra Comments at 3-4 (as a new entrant, SkyTerra asserts data roaming obligation is necessary as it builds
out its network, stating that it has billions of investment dollars on the line).
74 Id.
75 See Order on Reconsideration, 25 FCC Rcd at 4197 31. See, e.g., AT&T Comments at 8, 33; AT&T Reply
Comments at 29; Verizon Wireless Reply Comments at 22.
76 See also Order on Reconsideration, 25 FCC Rcd at 4197 31 (noting that "there are pro-competitive benefits that
flow from carriers differentiating themselves on the basis of coverage in their licensed service areas"). For further
discussion of the terms and scope of the roaming rules, see infra III.B.
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host providers will be paid for providing data roaming service, and we adopt a general requirement of
commercial reasonableness for all roaming terms and conditions, including rates, rather than a more
specific prescriptive regulation of rates requested by some commenters. This will give host providers
appropriate discretion in the structure and level of such rates that they offer. As we found in the Order on
Reconsideration
, "the relatively high price of roaming compared to providing facilities-based service will
often be sufficient to counterbalance the incentive to `piggy back' on another carrier's network."77 We
note that the pro-investment incentives that providers will have as a consequence of the high cost of
roaming are reflected in the terms and conditions offered by mobile data service providers, which
commonly include authorizing termination of service or other actions if a subscriber's roaming on other
networks becomes too large a part of the subscriber's service use.78 At a minimum, these roaming
limitations demonstrate that providers are unlikely to rely on roaming arrangements in place of network
deployment as the primary source of their service provision,79 nor will such arrangements lead to reduced
investment by requesting providers.
22.
Finally, as discussed more fully below, we provide that, if providers bring disputes to the
Commission, we will take into account factors including the impact on buildout incentives and the extent
and nature of providers' existing build-out in determining the commercial reasonableness of proffered
terms.80 As we have concluded before, a case-by-case determination of commercial reasonableness in the
event of a dispute preserves incentives to invest and protects consumers by facilitating their access to
nationwide service.81
23.
The data roaming rule we adopt today also adequately addresses AT&T's argument that a
data roaming requirement would weaken host providers' investment incentives by leaving them with "no
control" over the terms under which they will carry roaming traffic and thus unable to manage the
additional network congestion caused by such traffic. 82 Under our data roaming rule, providers will have
the ability to negotiate commercially reasonable measures to safeguard the quality of service against


77 Order on Reconsideration, 25 FCC Rcd at 4197-98 32.
78 See, e.g., T-Mobile Terms and Conditions, http://www.t-
mobile.com/Templates/Popup.aspx?WT.z_unav=ftr__TC&PAsset=Ftr_Ftr_TermsAndConditions&print=true
(permitting suspension or termination if more than 50% of a subscriber's voice and/or data usage is "Off-Net" for
any three billing cycles within any 12 month period); AT&T Wireless Customer Agreement,
http://www.wireless.att.com/cell-phone-
service/legal/index.jsp?q_termsKey=wirelessCustomerAgreement&q_termsName=Wireless+Customer+Agreement
#howDoIGetServOutsideNet (termination or other measures if off-net data usage exceeds the lesser of 24 megabytes
or 20% of the kilobytes included with a subscriber's plan); MetroPCS Terms and Conditions of Service,
http://www.metropcs.com/privacy/terms.aspx ("Our Services and Rate Plans are designed for you to use your
service each month predominantly in our service area. If your usage each month is not predominantly in our service
area, we may terminate your Service or restrict your ability to receive Service outside the areas served by our
network."); SouthernLINC Acceptable Use Policy, http://www.southernlinc.com/privacy/acceptable-use-policy.aspx
(providing roaming usage allowance of 30% of the Anytime minutes in the subscriber's plan).
79 See, e.g., MetroPCS Comments at 47; SouthernLINC Comments at 39; Leap Reply Comments at 5-6.
80 See infra III.D.
81 Order on Reconsideration, 25 FCC Rcd at 4190 18, 4197 31.
82 AT&T Comments at 44-45. See also AT&T Comments at 2; Verizon Wireless Comments at 47; AT&T Reply
Comments at 26-27; Verizon Wireless Reply Comments at 21.
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network congestion that may result from roaming traffic or to prevent harm to the network.83 This rule
also includes the ability to offer individualized, commercially reasonable terms, including rates, and to
evaluate a number of factors on a case-by-case basis in determining commercial reasonableness. We find
that this approach strikes the best balance between concerns over the potential for congestion or other
harms from roaming traffic and the significant benefits that data roaming arrangements can provide to
consumers.
24.
We reject arguments by AT&T and Verizon Wireless that a data roaming rule is
unnecessary because data roaming agreements are occurring without regulation.84 We find that providers
have encountered significant difficulties obtaining data roaming arrangements on advanced "3G" data
networks, particularly from the major nationwide providers.85 For example, Cellular South states that
after constructing its own EVDO facilities in some portions of its service area, its requests for data
roaming on large carriers' compatible networks were "rebuffed" for over a year.86 OPASTCO and NTCA
state that "rural wireless carriers' attempts to enter into negotiations with the nationwide wireless
providers for data roaming agreements are many times rejected out of hand, with a citation to the lack of a
data roaming requirement in the Commission's rules" and that "[t]his trend has increased as the mobile
wireless industry has begun to transition to 3G wireless services."87
25.
We observe that AT&T has largely refused to negotiate domestic 3G roaming
arrangements until recently,88 even though it launched its 3G service in 2005 and was providing coverage
to 275 major metropolitan areas in May 2008.89 For example, RTG has stated that "collectively, its


83 See infra III.C. As a consequence, we do not agree with Verizon Wireless that host providers could be forced by
this requirement to incur significant financial expenditure to expand capacity by adding cell sites, backhaul, network
equipment, and spectrum resources. Verizon Wireless Comments at 47.
84 See AT&T Comments at 2, 32-33, 36-37; Verizon Wireless Comments at 7-9; Verizon Wireless Reply Comments
at 10-13; see also AT&T Feb. 4, 2011 Ex Parte at 2 ("As the record makes clear, such 2G data roaming agreements
are now ubiquitous, and were reached widely throughout the industry on mutually agreeable terms without any
regulatory oversight.").
85 Letter from Michael H. Pryor, Counsel to Cox Communications, to Marlene H. Dortch, Secretary, FCC, WT
Docket No. 09-104, filed Apr. 28, 2010 (Cox Apr. 28, 2010 Ex Parte). See also NTELOS Reply Comments at 6;
OPASTCO & NTCA Comments at 2, 4; RCA Comments at 15; Letter from Thomas J. Sugrue, T-Mobile USA, Inc.,
to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Feb. 9, 2011 (stating that in some cases over
the past 36 months, "potential roaming partners were willing to offer 2G and 2.5G roaming, but would not offer
access to their 3G network"). Compare Letter from Caressa D. Bennet, Counsel to RTG, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 05-265, filed Nov. 22, 2010 with Letter of Tamara Preiss, Vice President,
Regulatory Affairs, Verizon Wireless, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Nov. 5,
2010 (Verizon Wireless Nov. 5, 2010 Ex Parte).
86 Cellular South Comments at 21.
87 OPASTCO & NTCA Comments at 4.
88 See AT&T Reply Comments at 32-34.
89 Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and
Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services, Eleventh Report, 21 FCC
Rcd 10947, 10993-94 113 (2006); Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act
of 1993, Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile
Services, Twelfth Report, 23 FCC Rcd 2241, 2302-2303 137 (2008); Implementation of Section 6002(b) of the
Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions with
(continued....)
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members have not been able to enter into 3G data roaming agreements with AT&T."90 In addition,
according to RCA, AT&T indicated "recently" that "it will not negotiate any 3G data roaming agreements
unless it helps to fill-in its nationwide coverage map."91 AT&T itself stated in its Reply Comments filed
July 12, 2010, that it had just "begun to offer 3G roaming arrangements . . . ."92 In mid-November, 2010,
it stated that it was "actively negotiating" several domestic 3G agreements but did not indicate that it had
entered into any such agreements.93 On March 24, 2011, AT&T filed an ex parte with the Commission
indicating that it had entered into a domestic HSPA+ roaming agreement, with Mosaic
Telecommunications94 -- apparently, its first roaming agreement for data service above 2.5G.
26.
Commenters also assert difficulties reaching agreements with Verizon Wireless. Cox
Communications states that obtaining an initial response to a request to negotiate a roaming agreement
with Verizon Wireless required nearly four months and that negotiations over the terms of Verizon
Wireless's requirement for a nondisclosure agreement consumed another four months; and thus, actual
negotiations over terms and conditions of a roaming agreement did not even begin for eight months after
Cox's initial request.95 RTG and RCA assert that Verizon Wireless has "told numerous RTG members
that it will not enter into EVDO (3G) roaming agreements in areas where it already has 3G coverage,"
and therefore is not open to 3G roaming agreements for customers of smaller providers that serve areas
(Continued from previous page)


Respect to Commercial Mobile Services, Thirteenth Report, 24 FCC Rcd 6185, 6255-6256 139 (2009); Fourteenth
Competition Report,
FCC 10-81 at 70 115.
90 See Letter from Caressa D. Bennet, General Counsel, Rural Telecommunications Group, Inc., to Marlene Dortch,
Secretary, FCC, WT Docket No. 05-265, filed Nov. 3, 2010. See also Letter from Rebecca Murphy Thompson,
General Counsel, Rural Cellular Association, and Caressa D. Bennet, General Counsel, Rural Telecommunications
Group, RTG, to Marlene Dortch, Secretary, FCC, WT Docket No. 05-265, filed Nov. 12, 2010 (RCA & RTG Nov.
12, 2010 Ex Parte) (stating that "[a]fter launching service in 2009, Mosaic Telecom attempted to negotiate a 3G data
roaming agreement with AT&T but was denied outright"); Letter from Daryl A. Zakov, Attorney for CTC Telcom
dba Mosaic Telecom, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Jan. 14, 2011 (stating
that Mosaic "proposed including 3G roaming with [a June 2009] roaming agreement but was told AT&T was not
interested in a 3G roaming agreement with Mosaic," that AT&T "did in fact reach out to Mosaic on November 15,
2010 to negotiate a 3G data roaming agreement" but that after Mosaic responded with a particular rate proposal the
same day, and following "a short series of e-mail exchanges, AT&T has stopped communicating with Mosaic"). In
a January 18, 2011 response, AT&T does not state whether or not it initially refused to negotiate a 3G roaming
agreement, but emphasizes that it initiated discussions with Mosaic for such an agreement in 2010, and it disputes
Mosaic's assertion that it has "stopped communicating" with Mosaic, stating that it is "in the process of responding
to Mosaic's rate proposal." Letter from Jeanine Poltronieri, AT&T, to Marlene H. Dortch, Secretary, FCC, WT
Docket No. 05-265, filed Jan. 18, 2011, at 1-2. On March 24, 2011, AT&T reported that it had reached a HSPA+
roaming agreement with Mosaic Telecommunications. See infra n.94.
91 See RCA & RTG Nov. 12, 2010 Ex Parte.
92 AT&T Reply Comments at 32.
93 See Letter from Michael Goggin, AT&T, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed
Nov. 23, 2011, at 2.
94 See Letter from Jeanine Poltronieri, AT&T, to Marlene Dortch, Secretary, FCC, WT Docket No. 05-265, filed
Mar. 24, 2011 (AT&T Mar. 24, 2010 Ex Parte). See also Letter from Daryl A. Zakov, Attorney for CTC Telcom
dba Mosaic Telecom, to Marlene Dortch, Secretary, FCC, WT Docket No. 05-265, filed Mar. 30, 2011 (Mosaic
Mar. 30, 2011 Ex Parte).
95 Cox Reply Comments at 7 (citing Cox Apr. 28, 2010 Ex Parte).
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where Verizon Wireless has its own network coverage.96 Although Verizon Wireless indicates that it
currently has a number of EV-DO roaming arrangements with other providers (including with several
providers that it asserts are members of RCA),97 it had only nine EV-DO roaming agreements as of April,
2010 even though its EV-DO network has been in operation since October of 2003 and as of June 2007,
covered more than 210 million pops with EV-DO Rev. A.98 We note again the importance of roaming to
consumers in rural areas, where mobile data services may be solely available from small rural providers,
and therefore the past difficulties of rural providers in obtaining data roaming presents a serious concern.
27.
We are also concerned that the recent successes by some providers in obtaining 3G data
roaming agreements or offers99 may have been the result of large providers seeking to defuse an issue
under active Commission consideration and may not accurately reflect the ability of requesting providers
to obtain data roaming arrangements in the future if the Commission were to decide not to adopt any data
roaming rules.100 For example, although the Commission determined in 2007 that CMRS providers were
not entitled to voice roaming within their own licensed service areas (the "home roaming" exclusion) in
part because it contemplated that providers would negotiate home roaming agreements, we concluded in
the Order on Reconsideration that "the adoption of an automatic roaming obligation with a home roaming
exclusion appears to have significantly reduced the incentive to make home roaming available, and will
lead to a reduction in the availability of home roaming arrangements over time."101 Consolidation in the
mobile wireless industry has reduced the number of potential roaming partners for some of the smaller,
regional and rural providers.102 In addition, this consolidation may have simultaneously reduced the
incentives of the largest two providers to enter into such arrangements by reducing their need for
reciprocal roaming.103 We also note that AT&T and Verizon Wireless are only now deploying "fourth-


96 See Letter from Rebecca Murphy Thompson, General Counsel, Rural Cellular Association, and Caressa D.
Bennet, General Counsel, Rural Telecommunications Group, RTG, to Marlene Dortch, Secretary, FCC, WT Docket
No. 05-265, filed Nov. 12, 2010 (RCA & RTG Nov. 12, 2010 Ex Parte).
97 See Verizon Wireless Jan. 18, 2011 Ex Parte; Verizon Wireless Nov. 5, 2010 Ex Parte. Verizon Wireless stated
in April, 2010, that "[n]o carrier . . . can credibly claim that Verizon Wireless has denied a request for data roaming
services." See Letter from Tamara Preiss, Verizon, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265,
filed Apr. 13, 2010 (Verizon Wireless Apr. 13, 2010 Ex Parte), at 4.
98 See "Verizon Wireless: 100 Percent Of Wireless Broadband Network Now Enhanced With Faster Speeds,"
http://news.vzw.com/news/2007/06/pr2007-06-28h.html.
99 See, e.g., AT&T Reply Comments at 32-34.
100 See Letter from Grant B. Spellmeyer, United States Cellular Corporation, to Marlene Dortch, Secretary, FCC,
WT Docket No. 05-265, filed Feb. 18, 2011, at 2 (asserting that US Cellular's "ability to eventually enter into a data
roaming agreement was reinforced by the strong likelihood that the FCC would act to require the negotiation of data
roaming agreements on reasonable terms and conditions."). See also Mosaic Mar. 30, 2011 Ex Parte (stating that it
had reached an HSPA+ roaming agreement with AT&T and that the Commission announcement of its decision to
adopt a data roaming rule "certainly accelerated the near-dormant pace of the negotiations").
101 Order on Reconsideration, 25 FCC Rcd at 4195 26, 28.
102 See Order on Reconsideration, 25 FCC Rcd 4181, 4196 29; Letter from Thomas J. Sugrue, T-Mobile USA,
Inc., to Chairman Julius Genachowski, FCC, WT Docket No. 05-265, filed Mar. 11, 2011, at 2 ("Consolidation in
the wireless industry specifically acquisition of many regional carriers by AT&T and Verizon has reduced the
total number of potential roaming partners.").
103 See, e.g., T-Mobile Comments at 8.
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generation" Long Term Evolution networks.104 Based on the record before us, we find it likely that these
providers will not be willing to offer roaming arrangements that cover these networks any time in the near
future, except in very limited circumstances.105 We agree with many of the commenters that, given the
coverage of these nationwide providers, there is a serious risk they might halt the negotiations of roaming
on their advanced mobile data networks altogether in the future in the absence of Commission oversight,
harming competition and consumers.106 Given these developments in the mobile services marketplace,
and in light of past difficulties that providers have experienced obtaining data roaming arrangements, we
find that adopting a balanced, flexible requirement will help to promote the availability of data roaming in
the future. We note that we intend to closely monitor further development of the commercial mobile
broadband data marketplace and stand ready to take additional action if necessary to help ensure that our
goals in this proceeding are achieved.
28.
In sum, we conclude that there are substantial benefits that will be derived from adoption
of the data roaming rule set forth herein, and that these benefits substantially outweigh the minimal costs
associated with the rule. We reach this conclusion even though it is not possible to quantify with
precision the benefits and costs based on the information we have before us, and even though many of the
benefits are not subject to quantification. Adoption of the rule, which is designed to promote access to
nationwide mobile broadband service and enhance incentives for providers to invest in deployment of
broadband facilities, is necessary to help ensure that the benefits of mobile broadband services will be
more fully realized. Absent such a rule, there will be a significant risk that fewer consumers would have
nationwide access to competitive mobile broadband services, and that even voice roaming will ultimately
be rolled back as voice becomes a data application.
29.
The benefits of adopting the proposed data roaming obligation are substantial. The rule
promotes the availability of commercially reasonable data roaming arrangements that might not otherwise
be available. Consistent with the record comments submitted by providers of all sizes serving a large
portion of consumers throughout all parts of this country, millions of American consumers who otherwise
might not have full access to mobile broadband services will benefit from adoption of the rule.


104 See Verizon Launches 4G LTE In 38 Major Metropolitan Areas By The End Of The Year, Oct. 6, 2010,
http://news.vzw.com/news/2010/10/pr2010-10-01c.html; Eric Zeman, AT&T Says LTE Roll-Out Coming Mid-2011,
InformationWeek, Sept. 16, 2010, at
http://www.informationweek.com/news/telecom/voice/showArticle.jhtml?articleID=227500076&cid=RSSfeed_IW
K_News; Phil Goldstein, AT&T to Launch LTE by Mid-2011, FierceWireless, Sept. 16, 2010, at
http://www.fiercewireless.com/story/t-launching-lte-mid-2011/2010-09-16 (citing AT&T Operations CEO John
Stankey). Cellular South asserts that it has "asked national carriers for assurances that [they] will able to negotiate
for 4G roaming at the appropriate time," but that these requests have been refused. Letter from Eric Graham,
Cellular South, Inc., to Marlene H. Dortch, FCC, WT Docket No. 05-265, filed Feb. 9, 2011, at 2.
105 We note that Verizon Wireless has indicated its willingness to enter into roaming agreements with small rural
providers that agree to construct 4G LTE networks in areas where Verizon Wireless does not currently have 4G
coverage, use Verizon Wireless's 700 MHz spectrum, and substantially integrate their network operations into
Verizon Wireless's 4G LTE network. See Verizon Wireless Nov. 5, 2010 Ex Parte at 2 ("Verizon Wireless will
offer 4G data roaming to participants in its LTE in Rural American [sic] program."). See also Verizon Wireless
Comments at 17; Verizon Wireless Reply Comments at 1, 33 n.104.
106 See, e.g., Blooston Comments at 7; Cellular South Comments at 17; Leap Reply Comments at 18; Media Access
Project Comments at 6; NTCH Comments at 3; T-Mobile Comments at 10-11; MetroPCS Reply Comments at 11-
12; NCTA Reply Comments at 2-3; NTELOS Reply Comments at 6; RCA Reply Comments at 6; US Cellular
Reply Comments at 3.
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30.
Furthermore, we find that the rule will promote significant investment in facilities-based
broadband networks throughout the country. As discussed above, several providers state that a data
roaming obligation is necessary to provide an acceptable level of risk for the investment in data
capabilities for their network, as it increases their chances of being able to offer their subscribers the
nationwide coverage needed for a viable product offering. Based on the information in the record, we
expect that there could be billions of dollars of additional investment in upgraded facilities and/or
expanded coverage, providing consumers with substantial benefits while also creating thousands of
jobs.107
31.
With the added investment and deployment of broadband services by multiple providers,
additional benefits will result from increased competition. As discussed above, several commenters have
stated that a data roaming obligation is necessary for them to provide competitive services, and enables
them to upgrade existing services or build out facilities-based coverage in new markets. The benefits of
competition include likely lower prices for such services, which will result in direct consumer surplus as
well as greater utilization of broadband data services. In addition, less expensive mobile broadband
services increase the availability of these services to consumers, which in turn creates incentives for edge
providers to develop innovative new services that use this capability. Although the benefits cannot be
calculated with precision, a rough estimate is that the benefits from the increased competition would be in
the billions of dollars per year.108


107 See Bright House Dec. 3, 2010 Ex Parte (Affidavit of Leo Cloutier, Senior VP) at 5 (Bright House's entry into
data services market would produce several hundred million dollars in capital investment); SkyTerra Comments at
3-4 (as a new entrant, SkyTerra asserts data roaming obligation is necessary as it builds out its network, stating that
it has billions of investment dollars on the line); Cellular South, February 9, 2011 Ex Parte at 3 ("The capital needed
for an extensive deployment of LTE . . . has remained sidelined as a result of the lingering uncertainty surrounding
data roaming and interoperability); NTELOS Comments at 3 ("Before pursuing a 4G upgrade, with a capital outlay
of many millions of dollars and increased operating expenses, NTELOS must be confident that it will continue to be
able to reach agreements on roaming arrangements with other carriers."). See generally paragraphs 17-19 supra.
We also note that studies find that there could be a substantial increase in jobs in rural America that would result
from increased broadband deployment. See, e.g., "Economic Impact of Wireless Broadband in Rural America" by
Raul Katz et al, attachment to Letter from Rebecca Murphy Thomas, General Counsel, RCA, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 05-265, filed February 24, 2011.
108 Our estimate is based on a consideration of the impact that lower prices for data services could have on the
customers who now or in the future are likely to have data plans. At the end of 2009, for instance, approximately
52.5 million customers had wireless Internet access subscriptions (see Internet Access Services: Status as of
December 31, 2009
, Industry Analysis and Technology Division, Wireline Telecommunications Bureau, FCC,
December 2010, at 15); this number is anticipated to increase substantially over the next few years. Assuming,
based on this figure, that 52.5 million customers now have data plans, the additional usage following the
implementation of the data roaming rule would be determined by the amount by which prices are lower and by the
price elasticity of data services. The consumer benefit of marginal units can be valued at the price of those units.
Using Verizon Wireless data, for example, it can be assumed that providers incur a variable cost of serving this
additional demand equal to approximately 32% of the revenue. (For 2009, Verizon Wireless reports $62,131million
in service and equipment revenue, $7,722 million in cost of services, and $12,222 million in equipment costs. See
Verizon Wireless Form 10-K 3/1/2011. Treating all of these costs as variable costs yields a variable cost to revenue
ratio of 19,944/62,131 = ~ 0.32.) The record does not address the elasticity of demand for wireless broadband
services, but the academic literature provides estimates of elasticities for wireless voice minutes of use and wired
broadband usage. For wireless voice minutes of use, these estimates range between -0.1 and -1.3. (See, e.g., Allan
T. Ingraham, Sidak, J. Gregory, "Do States Tax Wireless Services Inefficiently Evidence on the Price Elasticity of
Demand," 24 Va. Tax Rev. 249, Fall, 2004; Christian Growitsch, J. Scott Marcus, and Christian Wernick, "The
(continued....)
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32.
By comparison with the benefits of adopting a data roaming rule that promotes the
availability of data roaming arrangements, we find that the potential costs of adopting the rule that
requires providers to offer data roaming arrangements on commercial reasonable terms and conditions are
small.
33.
As discussed above, the two major opponents of a data roaming obligation Verizon
Wireless and AT&T assert that adoption of such an obligation could discourage investment by
providers, particularly in rural areas, which in turn would reduce mobile broadband availability and
utilization. The rule adopted in this Order, however, allows host providers to control the terms and
conditions of proffered data roaming arrangements, within a general requirement of commercial
reasonableness. For the reasons stated above, we conclude that such terms would preserve providers'
incentive to invest in their networks. Indeed, neither AT&T nor Verizon state that they would invest less
under a roaming obligation and therefore do not expect the roaming rule to reduce the investment of host
networks.
34.
Another potential cost is the possibility that requesting providers will substitute roaming
for investment in coverage and accordingly under-invest in deploying new infrastructure. Again,
however, our rule obligates the host provider only to offer data roaming on commercially reasonable
terms and conditions. As discussed above,109 such a standard will provide the requesting provider with
sufficient incentive to invest in facilities, except where doing so would be economically infeasible or
(Continued from previous page)


effects of lower Mobile Termination Rates (MTRs) on retail price and demand," Communications & Strategies
Article, October 1, 2010; Youngsoo Kim, Rahul Telang, William B. Vogt, Ramayya Krishnan, "An Empirical
Analysis of Mobile Voice Service and SMS: A Structural Model," Management Science Vol. 56, No. 2, pp. 234
252, February 2010.) The estimates in the academic literature for wired broadband usage range from -0.97 to -2.5.
(See, e.g., M. Cardona, A. Schwarz, B. B. Yurtoglu, and C. Zulehner, "Demand Estimation and Market Definition
for Broadband Internet Services," University of Vienna, 2008; P. Rappaport, L. Taylor, and D. Kridel, "Willingness
to Pay and Demand for Broadband Services, in (Ed), Allan L. Shampine, Down to the Wire, Nova Science
Publishers Inc., Hauppauge, NJ, 2003; P. Rappaport, D. Kridel, L. Taylor, K. Dunny-Deno, and J. Alleman,
"Residential Demand for Access to the Internet," in International Handbook of Telecommunications Economics,
Vol. II, ed. G. Madden, pp. 55-72, Edward Elgar, Cheltenham, UK, 2003.)
Since wireless data services are likely to be more price elastic than voice services, and likely to more closely mirror
wired broadband service elasticities, the midpoint of the range of elasticity estimates for wireless voice (which is -
0.7) would likely underestimate the elasticity of wireless data services alone, and therefore provides a conservative
estimate of the social benefit of an output increase arising from lower prices. Using this elasticity and an average
revenue per user (ARPU) of $513 per year for non-text data services, a 5% industry-wide reduction in prices for data
services would imply approximately $17.51 in additional usage per year for 52.5 million subscribers. After
subtracting variable costs, the aggregate social benefit (increase in aggregate surplus) can be estimated to be ~$0.62
billion per year. (An ARPU of $513 per year is calculated by multiplying $41.5 billion in total data revenue
(reported in Robert F. Roche and Lesley O'Neill, CTIA's Wireless Industry Indices, Semi-Annual Data Survey
Results: A Comprehensive Report from CTIA Analyzing the U.S. Wireless Industry, Year-End 2009 Results, May
2010, at 118-119 ) by 65% (the percentage of data revenue not attributed to text messaging in 2008, see Fourteenth
Competition Report
at p. 116 (Chart 28)), then divided by 52.5 million wireless Internet subscribers.) Assuming a
10% industry-wide reduction in prices for data would imply a ~$1.2 billion benefit to society per year. If an
elasticity of -1.1 were used, it would suggest a range for the increased social benefit of between ~$0.97 billion to
$1.9 billion per year.
109 See para. 21 supra.
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unrealistic regardless of the availability of roaming agreements.110 Further, we provide that the data
roaming obligation does not create mandatory resale obligations.
35.
An additional potential cost could result from harm to the host provider's network that
might result from congestion or technical problems. To enable a host provider to safeguard its quality of
service against network congestion, the order expressly provides that host providers are permitted to
negotiate commercially reasonable measures to safeguard against network congestion that might result
from data roaming traffic.111 The host provider thus would have the flexibility to account for the
additional traffic roaming would generate, and therefore avoid harmful congestion. Similarly, the rule
expressly provides that it is reasonable for a provider not to offer a data roaming arrangement to a
requesting provider that is not technologically compatible, or where it is not technically feasible to
provide roaming for the particular data service for which roaming is requested, or where any changes to
the host provider's network required to accommodate roaming are not economically reasonable.
36.
Thus, we conclude that there are substantial benefits that will be derived from adoption of
the data roaming rule set forth herein, and that these benefits substantially outweigh the minimal costs
associated with the rule.

B.

Scope and Requirements of the Data Roaming Rule

37.
Background. In the Second Further Notice, we sought comment on the appropriate scope
of any data roaming requirements that we might adopt, including what entities should be entitled to
request data roaming and whether the scope of the rules should differ in various respects from the
roaming obligations that the Commission has established for interconnected services.112 In addition, we
requested comment on whether the scope of entities that would be covered by the rules should include
providers of commercial mobile data services that do not also offer CMRS, and whether the class of
covered entities should be limited to terrestrial networks or also encompass satellite providers of mobile
data services (either by satellite or ancillary terrestrial component).113
38.
In particular, we sought comment on what specific terms, conditions, or restrictions the
Commission should include in any data roaming rule that we might adopt. We wanted to know whether
any conditions might be appropriate to help ensure that providers' incentives to innovate and invest are
not undermined.114 We inquired whether, for instance, we should limit any data roaming requirement in a
manner similar to the manner by which the Commission has addressed push-to-talk and text messaging
service, whereby the requesting provider must provide the underlying service for which roaming is
requested, roaming must be technically feasible, and any changes to the host network necessary to
accommodate roaming access to the requested service must be economically reasonable.115 We stated our
belief that including these conditions may be appropriate in the data roaming context, noting in particular
that requiring a requesting provider to offer a data service on its network would appear to be an essential


110 In our previous decision applying the voice roaming obligation to "in-market" roaming, the Commission
concluded that there may be areas where building another network may be economically infeasible or unrealistic.
Order on Reconsideration, 25 FCC Rcd at 4192 23.
111 See infra III.B.
112 See Second Further Notice, 25 FCC Rcd at 4221 85.
113 See id.
114 See Second Further Notice, 25 FCC Rcd at 4222, 87.
115 See id.; Further Notice, 22 FCC Rcd at 15845-46 79.
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element of a request for data roaming, and would help ensure that the request is not a request for resale.116
Further, we sought comment on whether these conditions would address concerns regarding the potential
technical issues that may arise when implementing data roaming arrangements.117
39.
We also sought comment on the impact of data roaming obligations on the network
capacity of host providers and their ability to provide full access to their own customers.118 In the 2007
Further Notice, the Commission had sought comment on any issues concerning network capacity,
network integrity, or network security if automatic roaming obligations were extended to non-
interconnected services and features, and on the effect that automatic roaming would have on the capacity
of data networks and the ability of providers to offer full access to their customers.119 In the Second
Further Notice
, we requested specific information "on how concerns regarding capacity or traffic
management issues from data roaming traffic could be addressed," particularly as to network congestion
issues.120
40.
Discussion. As discussed above, we conclude that the public interest would be served by
adopting a data roaming rule. We will require that facilities-based providers of commercial mobile data
services offer data roaming arrangements to other such providers on commercially reasonable terms and
conditions, subject to certain limitations specified below. We determine that the data roaming rule we
adopt should apply to all facilities-based providers of commercial mobile data services. In establishing
this rule, we seek to balance various competing interests, and we find that it is appropriate to specify
certain grounds on which, under the rule adopted today, providers of commercial mobile data services can
reasonably refuse to offer a data roaming arrangement. We also clarify that under the data roaming rule
adopted herein, providers of commercial mobile data roaming services are permitted to negotiate
commercially reasonable measures to safeguard quality of service against network congestion that may
result from roaming traffic or to prevent harm to their networks. We discuss the rule and limitations and
the standard of commercial reasonableness in more detail below.
41.
Covered Entities. Consistent with the comments addressing the scope of covered entities,
we determine that the data roaming requirement should apply to all facilities-based providers of
commercial mobile data services. For purposes of data roaming, we define a "commercial mobile data
service" as any mobile data service that is not interconnected with the public switched network but is (1)
provided for profit; and (2) available to the public or to such classes of eligible users as to be effectively


116 See Second Further Notice, 25 FCC Rcd at 4223 89. We noted that, as with our automatic voice roaming
requirement, we did not intend a data roaming requirement "to constitute a resale requirement" and we emphasized
we would decide in the case of a specific dispute whether data roaming should be provided in a particular instance,
and on what terms, or whether the request is essentially a request for resale. Id.
117 See Second Further Notice, 25 FCC Rcd at 4223 90.
118 See Further Notice, 22 FCC Rcd at 15846 80; Second Further Notice, 25 FCC Rcd at 4220-21 80-84.
119 Further Notice, 22 FCC Rcd at 15846 80. The Commission noted its concern that requiring a carrier to offer
roaming service on its data network to the customers of other carriers may result in the carrier facing capacity
constraints that adversely affect its own customers, and asked whether a carrier should have the right to limit access
to its network by roamers and what would justify any such limits. Id.
120 See Second Further Notice, 25 FCC Rcd at 4220 80-81. Some comments filed in response to the Further
Notice
addressed quality of service in terms of congestion. See id., 25 FCC Rcd at 4220 80 n.226 (contrasting
commenters arguing that roaming traffic will create congestion problems and undermine the quality of service for
users with those arguing that additional capacity needed to accommodate roamers will be negligible and that
capacity concerns therefore do not justify denying automatic roaming).
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available to the public. The scope of the current roaming obligation in Section 20.12 covers the CMRS
providers' provision of mobile voice and data services that are interconnected with the public switched
network, as well as their provision of text messaging and push-to-talk services.121 The rule adopted
herein will complement the current roaming obligation in Section 20.12 and cover mobile services that
fall outside the scope of that obligation. Under our decision today, as long as a provider provides mobile
data services that are for profit and available to the public or to such classes of eligible users as to be
effectively available to the public, it will be covered by the rule adopted herein regardless of whether the
provider also provides any CMRS and without regard to the mobile technology it is utilizing to provide
services. Thus, the scope includes MSS/ATC providers that offer commercial mobile data services that
meet these requirements. In addition, the data roaming rule adopted herein covers all facilities-based
providers of commercial mobile data services, including those constructing network facilities to offer
service on a wholesale basis.122 Further, providers of commercial mobile data services are covered
without regard to the devices used to access or receive their services. This approach is supported by those
parties in the record that commented on this issue,123 will help to achieve technological neutrality in the
data roaming obligation, and will ensure that the rule we adopt is adequate in the face of rapid changes in
commercial mobile technology and the commercial mobile ecosystem overall.
42.
Application of the Commercial Mobile Data Roaming Rule. The rule we adopt today
requires all facilities-based providers of commercial mobile data services to offer data roaming
arrangements to other such providers on commercially reasonable terms and conditions. As noted above,
we conclude that this rule serves the public interest by promoting connectivity for and nationwide access
to mobile data services and by promoting investment in and deployment of mobile broadband networks,
among other benefits. When a request for data roaming negotiations is made, as a part of the duty of
providers to offer data roaming arrangements on commercially reasonable terms and conditions, a would-
be host provider has a duty to respond promptly to the request and avoid actions that unduly delay or
stonewall the course of negotiations regarding that request. We will determine whether the terms and
conditions of a proffered data roaming arrangement are commercially reasonable on a case-by-case basis,
taking into consideration the totality of the circumstances.124
43.
The duty to offer data roaming arrangements on commercially reasonable terms and
conditions is subject to certain limitations. In particular: (1) providers may negotiate the terms of their
roaming arrangements on an individualized basis; (2) it is reasonable for a provider not to offer a data
roaming arrangement to a requesting provider that is not technologically compatible; (3) it is reasonable
for a provider not to offer a data roaming arrangement where it is not technically feasible to provide
roaming for the particular data service for which roaming is requested and any changes to the host


121 See 47 C.F.R. 20.12(a)(2).
122 See SkyTerra Comments at 6. As we have stated in the past, however, roaming arrangements cannot be used as a
backdoor way to create de facto mandatory resale obligations. See Report and Order, 22 FCC Rcd at 15836 51.
123 See, e.g., RCA Comments at 1 (urging the Commission to extend roaming obligations to data services, including
mobile broadband services, which are provided without interconnection to the public switched network); Cincinnati
Bell Comments at 4 (arguing the Commission should "extend automatic roaming obligations to all data services and
. . . apply the obligation to all facilities-based providers, whether or not they also provide CMRS"); SkyTerra
Comments at 1 (supporting extending automatic roaming obligations to all data services), 4-5 ("The very nature of
data roaming requires that the Commission apply it to a broader set of entities than are currently covered by the
automatic roaming rule . . . [and] . . . the Commission should apply the obligation, at a minimum, to all providers of
facilities-based commercial data services.").
124 See infra III.D.
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provider's network necessary to accommodate roaming for such data service are not economically
reasonable; and (4) it is reasonable for a provider to condition the effectiveness of a data roaming
arrangement on the requesting provider's provision of mobile data service to its own subscribers using a
generation of wireless technology comparable to the technology on which the requesting provider seeks to
roam.125
44.
We conclude that it serves the public interest to include these limitations in recognition of
the particular technical and policy issues that arise with respect to the provision of data services. As
discussed above, we recognize that the commercial mobile broadband data marketplace, particularly 4G
deployment, is still in a critical early stage. It encompasses many different services offered in conjunction
with many different devices employing wide-ranging technologies and exacting varying network
demands. In light of that continuing evolution, we find that the scope we establish for the roaming rule is
sufficiently flexible to apply to a wide range of ever changing technologies and commercial contexts, and
should afford parties negotiating commercial mobile data services roaming agreements a solid framework
within which to arrange their negotiations and ultimately reach agreement on commercially reasonable
terms. Below, we further discuss and clarify each of these limitations in turn.
45.
First, providers may negotiate the terms of their roaming arrangements on an
individualized basis. In other words, providers may offer data roaming arrangements on commercially
reasonable terms and conditions tailored to individualized circumstances without having to hold
themselves out to serve all comers indiscriminately on the same or standardized terms. Conduct that
unreasonably restrains trade, however, is not commercially reasonable. As discussed below, the
Commission may consider a range of individualized factors in addressing disputes over the commercial
reasonableness of the terms and conditions of the proffered data roaming arrangements.126 Giving
providers flexibility to negotiate the terms of their roaming arrangements on an individualized basis
ensures that the data roaming rule best serves our public interest goals discussed herein, and the
boundaries of the rule are narrowly tailored to execute our spectrum management duties under the Act.
46.
Second, it is commercially reasonable for providers not to offer a data roaming
arrangement to a requesting provider that is not technologically compatible. We clarify, however, that
technological compatibility does not necessarily require the same air interface in the network
infrastructure of the two providers.127 Technological compatibility can be achieved by using mobile
equipment that can communicate with the host provider's network.128 For example, requesting providers
that operate on different bands or technologies than the host might achieve technological compatibility by


125 In other words, a provider offering service only through, for example, a 1xRTT or GPRS/EDGE network, would
not be able to rely on the data roaming obligation for this service to obtain roaming on a later generation EV-DO or
UMTS/HSPA network until it starts offering the later generation service.
126 See infra III.D.
127 Report and Order, 22 FCC Recd at 15819 5 (stating that "[t]he basic technical requirement for roaming,
whether done manually or automatically, is that the subscriber has a handset that is capable of accessing the roamed-
on (host) system."). See also Manual and Automatic Roaming Obligations Pertaining to Commercial Mobile Radio
Services
, Notice of Proposed Rulemaking, 15 FCC Rcd 21628, 21629 2 (2000) (2000 CMRS Roaming NPRM);
Interconnection and Resale Second Report and Order, 11 FCC Rcd at 9466 7.
128 We expect that, when one of two overlapping frequency bands is a subset of the other, a mobile device with a
compatible air interface technology that supports the larger of the two bands will be capable of communicating with
a network deployed in the smaller band.
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providing subscribers with multi-band129 and multi-mode user devices.130
47.
Even if providers are technologically compatible, however, roaming for a particular
service may not be feasible for other technical reasons.131 Accordingly, it is also commercially reasonable
for a provider to refuse to enter into a data roaming arrangement for a particular data service where it is
not technically feasible to provide roaming for such service and where any changes to its network that are
necessary to accommodate such data roaming are economically unreasonable. With regard to these
grounds for reasonably refusing to enter into a roaming arrangement, we disagree with commenters that
they are too vague or would be too open to interpretation by providers seeking to delay or deny roaming
access.132 As noted above, identical conditions already apply to requests for push-to-talk and text-
messaging roaming arrangements.133 Further, we find that these grounds will offer parties negotiating
roaming agreements reasonable flexibility to negotiate terms without, for example, unduly hampering a
host provider with the burden of either adopting technologies which it has not already adopted in order to
accommodate the requesting provider's technology or undertaking economically unreasonable changes to
its network.
48.
Finally, we provide that it is commercially reasonable for a provider to condition the
effectiveness of a roaming arrangement on the requesting provider's provision of mobile data service
using a generation of wireless technology comparable to the technology on which the requesting provider
seeks to roam. We note that as with technological compatibility, this does not mean that the requesting
provider must have exactly the same air interface as the host provider.134 Rather, this focuses on
capabilities, including data rates, of the generation of mobile wireless technology that is being used to
provide services to subscribers. Permitting a service provider to condition the effectiveness of a roaming
arrangement in this circumstance provides additional incentives for the requesting provider to invest in
and upgrade its network to offer advanced services to its subscribers and ensures that the requesting
provider is not merely reselling the host provider's services. This limitation prevents providers, for
example, from only building a 2G network, providing their customers with 3G capable handsets, and then
relying on roaming arrangements to provide nationwide 3G coverage, and thus reasonably addresses
concerns raised by AT&T.135 To prevent undue delay in negotiations, we clarify that a host provider may


129 We note that in the case of overlapping bands, it is possible that multi-band support could be accomplished via a
software solution in the device or a software solution in the network. The term "multi-band support" is not
necessarily intended to imply a hardware solution in the mobile device.
130 See, e.g., MetroPCS Comments at 50-51; RCA Comments at 17-18; Sprint Comments at 6 n.11; T-Mobile Reply
Comments at 17; U.S. Cellular Reply Comments at 4-5.
131 See Report and Order, 22 FCC Rcd at 15837 55.
132 SouthernLINC Reply Comments at 23-24.
133 See, e.g., Cincinnati Bell Comments at 14.
134 See, e.g., Leap Comments 28-29; RTG Comments at 8 & n.25; Leap Reply Comments at 25-26.
135 See AT&T Comments at 63-66 (raising concerns that providers would have an incentive to build a 2G network,
provide their customers with 3G capable handsets, and rely on roaming arrangements to provide national 3G
coverage, and suggesting as example that a provider could build out a less expensive GSM/EDGE network in Los
Angeles and provide customers with HSPA handsets that are backwards compatible with its GSM/EDGE network,
and then rely on roaming arrangements to supply its customers with HSPA services in both its home area and
throughout the country). For purposes of this rule, we note that a next generation network will be regarded as
comparable to previous generation networks. For example, an LTE network provider can request non-
interconnected data roaming from an HSPA or EDGE network provider.
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not decline to enter into a roaming agreement with a requesting provider on the grounds that the
requesting provider is not actually providing service at the time of the request for negotiations, but may
tie the effectiveness of the agreement to the requesting provider offering the underlying service to its
subscribers with a generation of wireless technology comparable to the technology on which it would
roam. We find that incorporating this limitation as part of the scope of the data roaming rule is in the
public interest and critical to ensuring facilities are deployed, helping to alleviate concerns about
providers merely reselling commercial mobile data services on other networks.136 While we agree that
providers have many different legitimate business and technological reasons for rolling out services in
certain markets and not in others,137 we find that requiring, at a minimum, the underlying service to be
offered by the requesting provider with a generation of wireless technology comparable to the technology
on which it seeks to roam best balances competing interests of affording data roaming while also
encouraging facilities-based service.
49.
This limitation is also consistent with the Commission's previous roaming decisions
where the Commission has consistently limited roaming obligations to provisioning of certain services on
technologically compatible networks.138 The limitation on covered services coupled with the
technologically compatible networks requirement was sufficient to ensure that the generations of wireless
technologies used were comparable. The commercial mobile data services marketplace, however,
encompasses a broad array of generations of wireless technology and many different applications-- many
of which may require different technical considerations and offer different data speeds. Some of these
also may be more competitively attractive than others. We seek to encourage facilities-based offerings of
advanced mobile data services by providers and usage of data roaming arrangements to supplement such
offerings. Accordingly, it serves the public interest to focus on capabilities, including data rates, of the
generation of mobile wireless technology that is being used to provide services to subscribers.
50.
We decline to adopt certain other requirements proposed by AT&T, which suggests that,
in order to preserve the proper incentives for investment, the Commission establish an "equal network"
rule that would limit data roaming to only providers that use the same radio technologies and air
interfaces and that have substantial networks of their own.139 For the reasons discussed above, we
conclude, contrary to AT&T's argument, that providers will not have heightened incentives under the rule
adopted here to scale back their own deployments and "free-ride" on the superior investments of others.140
51.
We find it is unnecessary to adopt a requirement of identical interfaces. We require that
the air interfaces be comparable in terms of capabilities, which should achieve the same benefits as a
requirement of identical interfaces while providing greater technological flexibility in the rule. Further,


136 See, e.g., AT&T Comments at 65-66. See also Second Further Notice, 25 FCC Rcd at 4223 89.
137 See, e.g., MetroPCS Comments at 49-52 (stating that these reasons could include not having sufficient spectrum
to deploy such technology, needing the spectrum to service both existing customers and plan for future growth, or
not deploying a technology in one metropolitan area or another because the technology may be incompatible with
existing uses or may cause interference to other licensees).
138 See, e.g., Report and Order, 22 FCC Rcd at 15831 33 (stating that "[t]o 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"). See also T-Mobile Reply
Comments at 17-18.
139 AT&T Comments at 63-66.
140 Id.
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we agree with Leap and RCA that adopting a "substantial network" requirement could be problematic.141
An inability to negotiate a roaming arrangement before making a substantial build out could deter new
entrants and small, rural, and mid-sized providers from investing in broadband at the exact time such
investment is sorely needed.142 We are concerned that a "substantial network" requirement could hamper
or dampen facilities-based build-out in rural areas by unduly limiting the role of roaming in network
buildout. We also disagree with AT&T that, absent this requirement, providers will have heightened
incentives to scale back their own deployments and "free-ride" on the superior investments of others.143
As discussed above, the relatively high price of roaming compared to providing facilities-based service
will often be sufficient to counterbalance the incentive to scale back deployments in favor of relying on
another provider's network.144 Further, although we do not find that lack of "substantial" networks
deployments is categorically a commercially reasonable ground for declining to enter into a roaming
arrangement, the Commission may consider the extent and nature of providers' build-out as one of the
relevant factors in determining whether the proposed terms and conditions of a particular data roaming
arrangement are commercially reasonable.145
52.
Reasonable safeguards against congestion. With respect to any issues concerning
network capacity, network integrity, or network security, we note that under the rule that we are adopting
providers of commercial mobile data services are free to negotiate commercially reasonable measures to
safeguard quality of service against network congestion that may result from roaming traffic or to prevent
harm to their networks.146 We expect any measures, methods, or practices to manage the roaming traffic
to be part of the roaming terms and conditions offered by the host providers in their roaming
arrangements given that once providers enter into a data roaming arrangement, the arrangement will
govern the terms under which roaming is provided. Any issues arising in connection with the negotiation
of these measures will be resolved in accordance with the dispute resolution procedures we adopt in this
Order. We note that reasonable measures to safeguard against network congestion from roaming traffic
are supported by a number of commenters,147 and are already a feature of many commercially negotiated


141 Leap Comments at 28-29; RCA Comments at 17-18.
142 See, e.g., Blooston Comments at 2, 10; Cellular South Comments at 20; MetroPCS Reply Comments at 52; RCA
Comments at 7-10.
143 AT&T Comments at 63-66.
144 See supra III.A.
145 See infra III.D.
146 The record indicates that providers already commonly include in their negotiated roaming agreements terms that
give a host provider the ability to suspend roaming service if roaming becomes impractical for reasons such as
overload, outage, or other operational or technical issues. See Letter from Kathleen O'Brien Ham, T-Mobile USA,
Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Dec. 20, 2010, at 4.
147 See AT&T Comments at 61-63; NTCH Comments at 6; Clearwire Reply Comments at 14-15;Letter from Erin
Boone, Clearwire, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Oct. 29, 2010 (Clearwire
Oct. 29, 2010 Ex Parte) (stating that "mobile data roaming arrangements must be carefully negotiated and managed
to prevent unexpected congestion across a carrier's network"); Letter from Howard J. Symons, Counsel to T-Mobile
USA, Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Nov. 2, 2010 (T-Mobile Nov. 2,
2010 Ex Parte) (a host carrier should be able to take reasonable management practices to address congestion
attributable to roaming traffic, and also argues that the Commission must "make clear that the host carrier may not
insist on suspension or management rights that have the intent or effect of undermining or frustrating its obligation
to provide roaming on just and reasonable terms and conditions."); Letter from Charles W. McKee, Sprint Nextel, to
Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Nov. 22, 2010 (Sprint Nov. 22, 2010 Ex Parte)
(continued....)
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roaming arrangements.148 We caution, however, that host providers may not engage in stonewalling
behavior or refuse to negotiate because of concerns over the impact of roaming traffic on network
congestion.
53.
We decline to further detail the specific measures that may be adopted to safeguard
subscriber quality of service, as proposed by AT&T.149 As discussed herein, the commercial mobile data
services marketplace encompasses an array of generations of wireless technology and many different
services -- many of which may require different technical considerations in resolving network congestion.
Providers should have significant flexibility to negotiate safeguards subject to commercial
reasonableness, and a dispute over the reasonableness of any particular measure can be addressed under
the dispute resolution procedures, on a case-by-case basis based on the totality of circumstances. We do
not agree with AT&T that our approach will lead to "constant second-guessing" by the Commission.150
54.
We also decline to specify, as suggested by Clearwire, that data roaming be limited to
"best efforts access" to the host provider's network.151 We do not see the benefit in prohibiting parties
from negotiating other access terms in their roaming arrangement.152
55.
Host providers of commercial mobile data roaming services also are authorized to
negotiate commercially reasonable measures to ensure that data roaming does not compromise the
security and integrity of their networks.153 We are aware of the risks network operators face from harmful
devices on their networks and note that the Commission has previously considered the need for providers
to protect their networks when it adopted open platform provisions for the 700 MHz Band C Block.154 It
(Continued from previous page)


(stating that network management practices should not conceal anticompetitive conduct). Cf. RCA Comments to
Further Notice at 5 (supporting suspension or denial of service to roamer that causes congestion).
148 See Clearwire Reply Comments at 15; AT&T Comments at 61-63. See also T-Mobile Nov. 2, 2010 Ex Parte
("T-Mobile's existing roaming agreements include a provision giving the host carrier the ability to suspend roaming
service if roaming becomes impracticable for reasons such as system overload, system outage, or other operational
or technical issues"). Cf. AT&T Comments at 39-40 (noting that because host providers have no control over the
data plans, services and other options available to roamers that may affect their demand for data, they have "severely
diminished ability to manage or predict data usage by roamers, and this uncertainty adds to the cost of managing
networks and creates significant potential for degraded service quality").
149 See AT&T Comments at 61. AT&T comments that such safeguards should include prioritization of subscriber
traffic, and could take several forms: "(1) manual or dynamic packet prioritization at times and locations of
congestion; (2) limiting roaming users to 2/2.5G networks at times and locations of congestion; (3) `speed' limits on
roaming users; and (4) congestion-based pricing." Id. at 63.
150 AT&T Comments at 36; see also AT&T Reply Comments at 37 ("wireless broadband providers simply have no
way to predict what the Commission will, in after-the-fact adjudication, deem to be a `reasonable' denial or
limitation on roaming.").
151 See Clearwire Reply Comments at 15-16.
152 Because it is outside of the scope of this proceeding, we also decline to adopt SouthernLINC's suggestion that
the Commission amend its existing priority access service rules to require carriers choosing to provide the service to
do so on a non-discriminatory basis to all customers on the network, including roamers. See SouthernLINC Reply
Comments at 31 n.85 (citing 47 C.F.R. 64.402 and Part 64, Appendix B).
153 See AT&T Comments at 61.
154 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.
(continued....)
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would also be appropriate for providers of commercial mobile data roaming service to take reasonable
measures to ensure that network performance will not be significantly degraded.
56.
We emphasize again that we intend to closely monitor further development of the
commercial mobile broadband data marketplace and stand ready to take additional action if necessary to
help ensure that our goals in this proceeding are achieved.

C.

Legal Authority

57.
Background. In the Second Further Notice, we sought additional comment on the extent
of the Commission's authority to impose roaming duties on non-interconnected data services. We sought
comment on various different bases, including under our Title III authority relating to wireless services,
our Title II common carrier authority, and our ancillary authority under Title I of the Communications
Act.155 Commenters in support of our adoption of data roaming requirements contend that the
Commission has broad statutory authority to impose such requirements.
58.
Several proponents of data roaming assert that the Commission's legal authority under
Title III to regulate radio spectrum provides the Commission with a sufficient legal basis to require any
entity utilizing radio spectrum to make available data roaming to other wireless service providers.156
RCA argues that Title III provides the Commission with enormous discretion to regulate service
providers that utilize radio spectrum.157 SouthernLINC and Cellular South contend that the scope of this
authority is not affected by whether the service using the spectrum is classified as a telecommunications
or information service under the Act; rather, the Commission may use its Title III authority to adopt data
roaming rules regardless of whether the service involved is a voice or data service, whether it is a
telecommunications service or an information service, whether it is being offered on a common carriage
basis, or whether it is interconnected with the public switched telephone network.158
(Continued from previous page)


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, Declaratory Ruling on
Reporting Requirement Under Commission's Part 1 Anti-Collusion Rule, WT Docket No. 07-166, Second Report
and Order
, 22 FCC Rcd 15289, 15371 223 (2007) (700 MHz Second Report and Order).
155 Second Further Notice at 64-71.
156 Cellular South Comments at 4-7; Leap Comments at 9-10; US Cellular Comments at 9-10; SouthernLINC
Comments at 12-18; T-Mobile Comments at 16-18; US Cellular Comments at 9-10. Proponents argue that Section
301 empowers the Commission to regulate mobile data service including the imposition of roaming obligations that
encompass data as well as voice as a means of efficiently managing the use of the nation's radio spectrum resources.
See Bright House Comments at 11; RCA Comments at 4; T-Mobile Comments at 16-18. T-Mobile and
SouthernLINC state that the Commission has authority under Section 303(b) to impose obligations on licensees
including the nature of services provided by each class of licensee. See T-Mobile Comments at 17; SouthernLINC
Comments at 13-14; Clearwire Reply Comments at 7.
157 RCA Comments at ii, 2-6. See also Letter from Daniel L. Brenner, Counsel to Bright House Networks, to
Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Nov. 22, 2010, at 1 (Bright House Nov. 22, 2010
Ex Parte).
158 Cellular South Comments 5-7; SouthernLINC Comments at 11-12. See also RCA Comments at ii, 2-6. As
further evidence of the Commission's authority to regulate all wireless services, US Cellular, Cellular South and
(continued....)
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59.
MetroPCS argues that the Commission has authority under Title II of the Act, asserting
that the service provided to the home carrier by the roaming partner is merely a transmission service that
qualifies under existing legal precedents as a telecommunications service under the Communications Act
and is subject to the Commission's Title II authority.159 MetroPCS asserts that the transmission service
provided by a third-party wireless roaming carrier (the roaming partner) to facilitate data roaming is only
telecommunications, and a roaming partner merely passes the end-user's transmitted data to the home
carrier without any material change in the form or content making the transmission
telecommunications.160 Leap argues that the Commission should invoke Title I because a data roaming
requirement is reasonably ancillary to the Commission's authority under Title III to manage radio
spectrum and establish license conditions.161 Leap also argues that wireless data roaming obligations are
reasonably ancillary to the Commission's regulation of wireless voice roaming obligations because as
voice and data increasingly converge, implementing wireless data roaming obligations is ancillary to
achieving the public interest goals of its wireless voice roaming regulations.162
60.
In contrast, AT&T and Verizon Wireless argue that the Commission lacks the legal
authority to require data roaming under any provision of the Communications Act.163 They assert that the
Commission has no legal authority to impose a common carriage data roaming obligation because data
roaming is a private mobile service as defined in 47 U.S.C. 332.164 Verizon Wireless asserts that
Section 153(44) of the Communications Act prohibits the Commission from imposing a data roaming
obligation on any service that is not a "telecommunications service under any Title in the Act."165
61.
Discussion. We find that we have the authority to require facilities-based providers of
commercial mobile data services to offer data roaming arrangements to other such providers on
(Continued from previous page)


RCA argue that Section 303(r) grants the Commission the general power to prescribe rules, restrictions, and
conditions that are necessary to carry out the provision of the Act. See US Cellular Comments at 9-10; Cellular
South Comments at 7; RCA Comments at 5-7. See also T- Mobile Comments at 17. Further, manyProponents
assert that the Commission also may grant, revoke, or modify licenses, and may prescribe new conditions for
licenses under Sections 307, 309, 312, and 316. See Leap Comments at 12-15. See also RCA Comments at 5-6; US
Cellular Comments at 10; SouthernLINC Comments at 14; Clearwire Reply Comments at 7-9; Cellular South Reply
Comments at 23-31; Bright House Comments at 12-13.
159 MetroPCS Comments at 8-32.
160 Id. at 6.
161 Leap Comments at 25-27.
162 Id. at 25-27.
163 AT&T argues that Section 332(a) prohibits the Commission from imposing any roaming obligation on mobile
data services that do not offer interconnection with the public switched networks and that are not CMRS services.
See AT&T Comments at 12-19; AT&T Reply Comments at 12-23. AT&T also argues that the Commission lacks
the legal authority under Titles I, II and III. See AT&T Comments at 19-32; AT&T Reply Comments at 12-22.
Verizon Wireless asserts that Section 332(c)(2) and 153(44) as well as Titles I, II and III prohibit Commission
action. See Verizon Wireless Comments at 19-36; Verizon Wireless Reply Comments at 23-43
164 AT&T Comments at 10-19; AT&T Reply Comments at 1-12; Verizon Wireless Comments at 24-27; Verizon
Wireless Reply Comments at 23-37; Letter from Michael Goggin, AT&T, to Marlene H. Dortch, Secretary, FCC,
WT Docket No. 05-265, filed Sept. 22, 2010 (AT&T Sept. 22, 2010 Ex Parte).
165 Verizon Wireless Comments 23-27, 32-35; Verizon Wireless Reply Comments at 27-36; Letter from John T.
Scott, Deputy General Counsel of Verizon Wireless, to Marlene Dortch, Secretary, FCC, WT Docket No. 05-265,
filed Nov. 8, 2010, at 10-13 (Verizon Wireless Nov. 8, 2010 Ex Parte) .
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commercially reasonable terms and conditions. As discussed above, we find that the rule we adopt today
serves the public interest by promoting connectivity for, and nationwide access to, mobile broadband. By
promoting consumer access to advanced wireless services, the data roaming rule will enhance the unique
social and economic benefits that a mobile service provides. The data roaming rule will also serve the
public interest by promoting competition and investment in and deployment of mobile broadband
services. Broadband deployment is a key priority for the Commission, and the deployment of mobile data
networks will be essential to achieve the goal of making broadband connectivity available everywhere in
the United States. As noted earlier, mobile broadband networks, particularly "fourth-generation"
networks, are still at an early stage of deployment. Both nationwide and non-nationwide providers have
obtained licenses, including AWS and 700 MHz spectrum licenses, which will be used to provide
innovative wireless data services to consumers. We find that the availability of data roaming will help
ensure the viability of new data network deployments and promote the development of competitive
service offerings for the benefit of consumers.
62.
Our authority under Title III allows us to adopt requirements to serve these public interest
objectives. Spectrum is a public resource, and Title III of the Act provides the Commission with broad
authority to manage spectrum, including allocating and assigning radio spectrum for spectrum based
services and modifying spectrum usage conditions in the public interest.166 The Commission is charged
with maintaining control "over all the channels of radio transmission" in the United States.167 Section 301
states that "[i]t is the purpose of this Act, among other things, to maintain the control of the United States
over all the channels of radio transmission; and to provide for the use of such channels, but not the
ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority,
and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the
license."168 The issuance of a Commission license does not convey any ownership or property interests in
the spectrum and does not provide the licensee with any rights that can override the Commission's proper
exercise of its regulatory power over the spectrum.169 Section 316 authorizes the Commission to adopt


166 Application of the Title III provisions is not affected by whether the service using the spectrum is a
telecommunications service or information service under the Act. See Wireless Broadband Internet Access
Classification Order
, 22 FCC Rcd at 5915 36 (finding that wireless broadband Internet access, although an
information service, continues to be subject to obligations promulgated pursuant to Title III). The Commission also
relied on authority under Section 303(r) to impose "open platform" obligations on Upper 700 MHz C Block
licensees, without regard to whether such licensees were providing telecommunications services or information
services. 700 MHz Second Report and Order, 22 FCC Rcd at 15365 207. See also Interconnection and Resale
Obligations Pertaining to Commercial Mobile Radio Services, CC Docket No. 94-54, Report and Order, 11 FCC
Rcd 18455, 18459-60 7, 188471-72 31 (relying on Title III authority to impose resale obligations on non-Title II
services); Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Services, CC Docket No.
94-54, Memorandum Opinion and Order on Reconsideration, FCC 99-250, 27 (1999) (expressly rejecting
"[a]rguments that the scope of the resale rule is overbroad because it extends to non-Title II services," reaffirming
that Title III provided a basis for imposing the rule).
167 47 U.S.C. 301.
168 Id.
169 47 U.S.C. 301, 304, 309. Section 301 states that the Act provides for "use, under federally-issued licenses of
limited duration, of channels of radio transmission," "but not the ownership thereof," and that "no such license shall
be construed to create any right, beyond the terms, conditions, and periods of the license." Section 304 states that
"[n]o station license shall be granted by the Commission until the applicant therefore shall have waived any claim to
the use of any particular frequency or of the electromagnetic spectrum as against the regulatory power of the United
States because of the previous use of the same, whether by license or otherwise." Section 309(h) requires that each
FCC license contain, inter alia, a condition that the "station license shall not vest in the licensee any right to operate
(continued....)
30

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new conditions on existing licenses if it determines that such action "will promote the public interest,
convenience, and necessity."170 Further, the Commission may utilize its rulemaking powers to modify
licenses when a new policy is based upon the general characteristics of an industry.171 Section 303
provides the Commission with authority to establish operational obligations for licensees that further the
goals and requirements of the Act if the obligations are in the "public convenience, interest, or necessity"
and not inconsistent with other provisions of law.172 Section 303 also authorizes the Commission, subject
to what the "public interest, convenience, or necessity requires," to "[p]rescribe the nature of the service
to be rendered by each class of licensed stations and each station within any class."173
(Continued from previous page)


the station nor any right in the use of the frequencies designated in the license beyond the term thereof nor in any
other manner than authorized therein."
170 47 U.S.C. 316.
171 See, e.g., Celtronix Telemetry v. FCC, 272 F.3d 585, 589 (D.C. Cir. 2001) (stating that the Commission "always
retained the power to alter the term of existing licenses by rulemaking" and finding that the Commission may
exercise this authority even if the licenses were awarded at auction); WBEN, Inc. v. U.S., 396 F.2d 601, 618 (2d Cir.
1968) (stating that the Commission may modify licenses by rule making "when . . . a new policy is based upon the
general characteristics of an industry, rational decision is not furthered by requiring the agency to lose itself in an
excursion into detail that too often obscures fundamental issues rather than clarifies them"); California Citizens
Band Ass'n v. U.S.
, 375 F.2d 43, 50-52 (9th Cir. 1967); cf. U.S. v. Storer, 351 U.S. 763 (1956) (holding that Section
309(b) requirement that full hearing be conducted before license application is denied did not prevent the FCC from
changing eligibility requirements by rulemaking, thereby obviating need for full hearing for applicants who failed
new eligibility criteria); Community Television v. FCC, 216 F.3d 1133, 1140-41 (D.C. Cir. 2000) (holding that the
"FCC may modify entire classes of licenses" through the rulemaking process and rejecting the argument that the
nature of Commission action giving broadcasters new digital channels that would eventually replace their analog
channels was too extreme to constitute a license modification, since the FCC "ha[d] not wrought a fundamental
change to the terms of those permits and licenses"); Committee for Effective Cellular Rules v. FCC, 53 F.3d 1309,
1319-20 (D.C. Cir. 1995) (holding that the FCC has authority to act by rulemaking to establish rules of general
applicability that modify technical requirements of all licenses in a given class); American Airlines v. CAB, 359 F.2d
624 (D.C. Cir. 1966) (upholding CAB regulation that modified through rule making all existing aviation certificates
despite statutory requirement of a full adjudicatory hearing for modifications of specific certificates, and rejecting
the contention that Storer doctrine is inapplicable to rulemaking proceedings in which outstanding licenses are
affected).
172 See 47 U.S.C. 303(r) (stating that if the "public convenience, interest, or necessity requires" the Commission
shall ". . . prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the
provisions of this Act"); Schurz Communications, Inc. v. FCC, 982 F.2d 1043, 1048 (7th Cir. 1992) (stating that the
Communications Act invests Commission with "enormous discretion" in promulgating licensee obligations that the
agency determines will serve the public interest). See also 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, Declaratory Ruling on Reporting Requirement under Commission's Part 1 Anti-
Collusion Rule, WT Docket No. 07-166, Second Report and Order, 22 FCC Rcd 15289, 15365 207 (2007) (700
MHz Second Report and Order
).
173 47 U.S.C. 303(b).
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63.
We find that these provisions establish our authority to adopt rules facilitating roaming
with respect to commercial mobile data services. Specifically, we find that it is within our authority to
manage spectrum and to impose conditions on licensees where necessary to promote the public interest,
convenience, and necessity to adopt data roaming rules.174 As discussed above, we find that the data
roaming rule we adopt today serves the public interest by facilitating consumer access to ubiquitous
mobile broadband service.175 As more and more consumers use mobile devices to access a wide array of
both personal and business services, they have become more reliant on their devices. These consumers
expect to be able to have access to the full range of services available on their devices wherever they go.
By promoting connectivity for, and ubiquitous access to, mobile broadband, the rule we adopt today
supports consumer expectations and helps ensure that consumers are able to fully utilize and benefit from
the availability of wireless broadband data services.176
64.
As discussed earlier, the data roaming rule we adopt today also supports our goal of
encouraging investment and innovation and the efficient use of spectrum. We agree with commenters
that adopting a data roaming rule will encourage service providers to invest in and upgrade their networks
to be able to compete with other providers and control their costs.177 By encouraging build-out and
deployment of advanced data services, the rule we adopt today helps ensure that spectrum is being put to
its best and most efficient use.178 Data roaming also furthers the goals under Section 706(a) and (b) of the
Telecommunications Act of 1996, including encouraging new deployment of advanced services to all
Americans by promoting competition and by removing barriers to infrastructure investment, including the
barriers to new entrants.179 The Commission estimated that more than 10 million Americans live in rural


174 47 U.S.C. 301, 303, 304, 309, 316. See also Interconnection and Resale Order, 11 FCC Rcd at,9470-71 13
(noting that the Commission has "authority to impose a roaming requirement in the public interest pursuant to our
license conditioning authority under Sections 303(r) and 309 of the Act").
175 See supra III.A.
176 Under Title I, the Commission may exercise ancillary authority over a matter when it falls within the agency's
general statutory grant of jurisdiction under Title I and the regulation is reasonably ancillary to the effective
performance of the Commission's statutorily mandated responsibilities. United States v. Southwestern Cable Co.,
392 U.S. 157, 17273 (1968); accord United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972). See also
American Library Ass'n. v. FCC
, 406 F.3d 689, 700 (D.C. Cir. 2005); Comcast Corp. v. FCC, 600 F. 3d 642 (D.C.
Cir. 2010). Because encouraging data roaming serves the public interest by promoting connectivity for, and
ubiquitous access to, mobile broadband as well as facilitating consumer access to wireless broadband data coverage
nationwide, the obligations set forth above are reasonably ancillary to the Title III provisions to manage spectrum,
allocate, assign, and to establish spectrum usage conditions in the public interest as set forth above.
177 See e.g., Leap Reply Comments at 4.
178 47 U.S.C. 303(g).
179 See supra, III.A. Section 1302(a) directs the Commission to take actions that encourage the deployment of
"advanced telecommunications capability." It directs the Commission to encourage the deployment of such
capability by "utilizing, in a manner consistent with the public interest, convenience, and necessity," various tools
including "measures that promote competition in the local telecommunications market, or other regulating methods
that remove barriers to infrastructure investment." 47 U.S.C. 1302(a). Section 1302(b) directs the Commission to
undertake annual inquiries concerning the availability of advanced telecommunications capability to all Americans
and requires that, if the Commission finds that such capability is not being deployed in a reasonable and timely
fashion, it "shall take immediate action to accelerate deployment of such capability by removing barriers to
infrastructure investment and by promoting competition in the telecommunications market." 47 U.S.C. 1302(b).
See also Preserving the Open Internet, GN Docket. No. 09-191, Broadband Industry Practices, WC Docket. No. 07-
52, Report and Order, FCC 10-201, 117-123 (rel. Dec. 23, 2010) (Open Internet Order).
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census blocks with two or fewer mobile service providers.180 Data roaming will encourage service
providers to invest in and upgrade their networks and to deploy advanced mobile services ubiquitously,
including in rural areas.
65.
We disagree with AT&T and Verizon Wireless's argument that the Commission lacks
authority to impose data roaming rules because data roaming is a private mobile radio service, as defined
in section 332 of the Act and thus any common carrier regulation of data roaming is prohibited under the
terms of the statute. Section 332(c)(2) provides that "a person engaged in the provision of a service that is
a private mobile service shall not ... be treated as a common carrier for any purpose ..."181 AT&T and
Verizon Wireless argue that Section 332(c)(2) prohibits the Commission from imposing any roaming
obligation for provisioning of commercial mobile data services that do not interconnect with the public
switched networks because non-interconnected commercial mobile data services are not CMRS but
private mobile radio service (PMRS).182 AT&T argues that roaming obligations clearly amount to
common carrier obligations and that, under the Supreme Court's decision in Midwest Video II, such
regulations are prohibited. In Midwest Video II, the Supreme Court found that obligations requiring cable
television systems to allocate channels for educational, government, public, and leased access users had
"relegated cable systems, pro tanto, to common-carrier status."183 The Court noted that the rules required
operators to make these channels available on a first-come non-discriminatory basis, prohibited cable
operators from influencing the content of access programming, and also put limits on charges for
access.184 The Court found that this "common carrier status" violated the Act's prohibition against
deeming broadcasters to be common carriers, because at the time, cable regulations rested on the FCC's
authority to regulate broadcasting.185 AT&T argues that requiring carriers to offer data roaming "on
reasonable request, on reasonable terms and rates, and free from unreasonable discrimination"186 would
similarly treat such providers as common carriers in violation of the prohibition against common carrier
treatment in the definition of "private mobile service."187
66.
Contrary to the arguments of AT&T and Verizon Wireless, to adopt a data roaming rule
as discussed herein, we do not need to determine that a mobile service should be classified as CMRS.188
Section 332 does not bar the Commission from establishing spectrum usage conditions based upon our
Title III authority. As discussed above, Title III generally provides the Commission with authority to
regulate "radio communications" and "transmission of energy by radio."189 Among other provisions,


180 Fourteenth Competition Report, FCC 10-81 at 188-89 353 & Table 38.
181 47 U.S.C. 332(c)(2).
182 See AT&T Comments at 12-19; AT&T Reply Comments at 12-22; Verizon Wireless Comments at 19-36;
Verizon Wireless Reply Comments at 24-27, 37-43.
183 FCC v. Midwest Video Corp., 440 U.S. 689, 700-01 (1979) (Midwest Video II).
184 Id. at 702.
185 Id. at 703-09.
186 AT&T Sept. 22, 2010 Ex Parte at 3.
187 Id.
188 T-Mobile Oct. 22, 2010 Ex Parte at 11; MetroPCS Oct. 15, 2010 Ex Parte attachment at 4; SouthernLINC Oct.
6, 2010 Ex Parte at 2.
189 See Title III - Provisions Relating to Radio, 47 U.S.C. 301 et seq. See also IP-Enabled Services NPRM, 19
FCC Rcd 4863, 4918 (2004).
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Title III gives the Commission the authority to classify radio stations.190 It also establishes the basic
licensing scheme for radio stations, allowing the Commission to grant, revoke, or modify licenses.191 The
Commission has imposed operating conditions on licensees regardless of the type of service they
provide.192
67.
In this Order, we impose an obligation with limitations on facilities-based providers of
commercial mobile data services to offer data roaming arrangements to other facilities-based providers of
commercial mobile data services on an individualized case-by-case basis, subject to a standard of
commercial reasonableness as well as certain specified limitations set forth herein.193 Imposing such a
requirement is consistent with our authority to impose certain operating conditions on any spectrum
authorization holders, including private mobile radio licensees, if it serves the public interest. The data
roaming rule will complement the current roaming rules applicable to interconnected services, improve
efficiency of spectrum use, encourage competition and increase sharing opportunities between private
mobile services and other services.194 In particular, we find that the rule we adopt today is consistent with
the requirements of sections 332(a)(2)-(4) of the Act. Sections 332(a)(2)-(4) provide that, in managing
the spectrum made available for use by private mobile services, the Commission shall consider whether
its actions will: improve the efficiency of spectrum use and reduce the regulatory burden upon spectrum
users, based upon sound engineering principles, user operational requirements, and marketplace demands;
encourage competition and provide services to the largest feasible number of users; or increase
interservice sharing opportunities between private mobile services and other services.195 We find that, by
promoting competition, investment, and new entry while facilitating consumer access to ubiquitous
mobile broadband service, the rule we adopt today will serve these objectives.
68.
We also find that the data roaming rules we adopt do not amount to treating mobile data
service providers as "common carriers" under the Act.196 As AT&T and Verizon Wireless recognize, a


190 47 U.S.C. 302, 303.
191 47 U.S.C. 307-309, 312, 316.
192 See, 700 MHz Second Report and Order, 22 FCC Rcd at 15365 207 (imposing "open platform" obligations on
Upper 700 MHz C Block licensees based on Title III authority); Interconnection and Resale Obligations Pertaining
to Commercial Mobile Radio Services, CC Docket No. 94-54, Report and Order, 11 FCC Rcd 18455, 18459 7,
188471-72 31 (relying on Title III authority to impose resale obligations on non-Title II services); Interconnection
and Resale Obligations Pertaining to Commercial Mobile Radio Services, CC Docket No. 94-54, Memorandum
Opinion and Order on Reconsideration
, FCC 99-250, 27 (1999) (expressly rejecting "[a]rguments that the scope
of the resale rule is overbroad because it extends to non-Title II services," reaffirming that Title III provided a basis
for imposing the rule).
193 See supra III.B and infra III.D for detailed discussions of the scope and the application of the data roaming rule
and other factors that may be relevant in determining commercial reasonableness.
194 See Section 332(a).
195 47 U.S.C. 332(a)(2)-(4).
196 We note that courts review the Commission's application of the test for common carrier status deferentially. See
U.S. Telecom. Ass'n v. FCC
, 295 F.3d 1326, 1332 (D.C. Cir. 2002) ("[W]here an agency has adopted a judicial test
as its own, we . . . review its application of that test only to determine whether it is unreasonable or arbitrary and
capricious.").
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"sine qua non" of common carrier treatment is "the undertaking to carry for all people indifferently."197
The extent of the obligation we impose today is to offer, in certain circumstances, individually negotiated
data roaming arrangements with commercially reasonable terms and conditions. The rule we adopt will
allow individualized service agreements and will not require providers to serve all comers indifferently on
the same terms and conditions.198 Providers can negotiate different terms and conditions on an
individualized basis, including prices, with different parties. The commercial reasonableness of terms
offered to a particular provider may depend on numerous individualized factors, including the level of
competitive harm in a given market and the benefits to consumers; the extent and nature of the requesting
provider's build-out; whether the requesting provider is seeking roaming for an area where it is already
providing facilities-based service; and the impact of granting the request on the incentives for either
provider to invest in facilities and coverage, services, and service quality.199 In addition, providers may
reasonably choose not to offer a roaming arrangement to a requesting provider that is not technologically
compatible or refuse to enter into a roaming arrangement where it is not technically feasible to provide
roaming for the service for which it is requested.200 A provider is not required to make changes to its
network that are economically unreasonable, and it is reasonable for a provider to condition the
effectiveness of a roaming arrangement on the requesting provider's provision of mobile data service to
its own subscribers using a generation of wireless technology comparable to the technology on which the
requesting provider seeks to roam.201 Providers of commercial mobile data services also are free to
negotiate commercially reasonable measures to safeguard quality of service against network congestion
that may result from roaming traffic or to prevent harm to their networks.202 In addition, the rule we
adopt does not impose any form of common carriage rate regulation or obligation on providers of mobile
data services to publicly disclose the rates, terms, and conditions of their roaming agreements. Under the
agreements to which negotiations may lead, providers will have flexibility with regard to roaming
charges, subject to a general requirement of commercial reasonableness.203 Further, actual provisioning


197 Letter from John T. Scott, Deputy General Counsel of Verizon Wireless, to Marlene Dortch, Secretary, FCC,
WT Docket No. 05-265, filed Mar. 30, 2011, at 3 (Verizon Wireless Mar. 3, 2011 Ex Parte) (quoting NARUC v.
FCC
, 533 F.2d 601, 60809 (D.C. Cir. 1976) (NARUC II) (internal quotation marks omitted)).
198 See infra III. D; see also Southwestern Bell Tel. Co. v. FCC, 19 F.3d 1475, 1481(D.C. Cir. 1994) ("[T]he
indiscriminate offering of service on generally applicable terms . . . is the traditional mark of common carrier
service."). Verizon notes that in Iowa Telecommunications Services v. Iowa Utilities Bd., 563 F.3d 743, 745-46 (8th
Cir. 2009), the Eighth Circuit concluded that Sprint qualified as a telecommunications carrier, and thus a common
carrier, "notwithstanding individually negotiated contracts." Verizon Wireless Mar. 3, 2011 Ex Parte at 6. But in
that case, Sprint, unlike the carriers here, "self-certified that it is a common carrier" and "ma[de] public its intent to
act as a common carrier" for the services at issue. 563 F.3d at 749. Verizon also relies on Orloff v. FCC. 352 F.3d
415 (D.C. Cir. 2003). In Orloff, the D.C. Circuit reviewed an FCC policy of generally relying on market forces to
ensure ultimate compliance by CMRS providers with the statutory prohibition on "unjust or reasonable
discrimination in charges" of common carriers. 47 U.S.C. 202(a); see id. at 419-21. In contrast, we here reject--
rather than determine how to enforce--a common carriage requirement of "just and reasonable" rates, terms, and
conditions.
199 Id.
200 See supra III. B.
201 Id.
202 Id.
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of data roaming under those arrangements and any practices in connection with such arrangements will be
subject to individually negotiated contractual provisions,204 unlike a common carrier obligation under
Sections 201 and 202 of the Act which covers all charges and practices in connection with such services.
In view of these boundaries, we find that the rule we adopt today to execute our spectrum management
duties under the Act does not subject a spectrum-based commercial mobile data service provider to Title
II nor does it treat these providers as common carriers with respect to their regulatory status and
obligations. 205
69.
Imposition of the Data Roaming Rule under Title III does not amount to Regulatory
Taking. Verizon Wireless argues that imposing data roaming obligations amounts to a physical and
regulatory taking.206 Verizon Wireless claims that data roaming is a physical taking of wireless carriers'
property rights in their network infrastructure by authorizing third parties to occupy the physical space
available on carrier networks at will.207 Verizon Wireless also claims that data roaming would constitute
a regulatory taking because it would interfere with licensees' reasonable expectations not to have common
carrier regulations imposed on information services. We disagree. Under Section 304 of the
Communications Act, the issuance of an FCC license does not provide the licensee with any rights that
can override the Commission's proper exercise of its regulatory power over the spectrum: "[n]o station
license shall be granted by the Commission until the applicant therefore shall have waived any claim to
the use of any particular frequency or of the electromagnetic spectrum as against the regulatory power of
the United States because of the previous use of the same, whether by license or otherwise."208 Further,
under the data roaming rule, the host provider will be compensated for service it provides consistent with
the commercially reasonable terms it negotiates in the roaming agreement. There can be no taking if that
compensation is "just."209 It does not appear to be possible that compensation could be "unjust" if it is
commercially reasonable. Commercially reasonable terms may also include measures that allow the host
(Continued from previous page)


203 This is one fundamental distinction between the rules adopted here and those at issue in Midwest Video II, on
which AT&T and Verizon rely. See Midwest Video II, 440 U.S. at 694, 701-02 (1979); see also id. at 702 (noting
that the Commission "conceded before this Court that the rules `can be viewed as a limited form of common
carriage-type obligation'"(quoting Government brief)).
204 See infra III. D.
205 We also note that, although we do not treat non-interconnected commercial mobile data providers as common
carriers here, Section 332 does not provide an absolute prohibition on imposing common carrier regulation on a
provider of private mobile radio service to the extent that the provider offers a telecommunications service. See In
the Matter of Implementation of the Local Competition Provisions of the Telecommunications Act of 1996,
Interconnection Between Local Exchange Carriers and Commercial Mobile Radio Service Providers, CC Docket
Nos. 96-98, 95-185, First Report and Order, 11 FCC Rcd 15499, 15989 993 (1996) (finding that "to the extent a
PMRS provider uses capacity to provide domestic or international telecommunications for a fee directly to the
public, it will fall within the definition of `telecommunications carrier' under the Act and will be subject to the
duties listed in section 251(a)").
206 Verizon Wireless Comments at 43-48.
207 Verizon Wireless Comments at vi, 43-48.
208 47 U.S.C. 304.
209 U.S. CONST. amend. V ("nor shall private property be taken for public use, without just compensation"); see
e.g.
, Bauman v. Ross, 167 U.S. 548, 574 (1897) ("The just compensation required by the Constitution to be made to
the owner is to be measured by the loss caused to him by the appropriation. He is entitled to receive the value of
what he has been deprived of, and no more.").
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provider to safeguard the quality of service and allow measures to prevent harm to the host provider's
network.
70.
Commission's Title II Authority. Several commenters argue that data roaming is a
telecommunications service under Title II.210 MetroPCS, for example, asserts that the transmission
service provided by a third-party wireless roaming carrier (the Roaming Partner) to facilitate data roaming
is only telecommunications and that the transmission provided by the Roaming Partner is functionally
equivalent to the telecommunications services provided for voice roaming.211 MetroPCS asserts that "the
separate, severable, non-integrated transmission service provided by a third-party wireless Roaming
Partner is properly viewed as purely a transmission service that qualifies under long-standing
Commission precedent as `telecommunications' and as a `telecommunications service.'"212 Leap argues
that the Commission can act pursuant to its Title II authority, stating that "the Commission could define
data roaming as a telecommunications service because during data roaming, the host carrier is providing
pure data transmission to another carrier."213 We find that we need not decide whether data roaming
services provisioned in this manner are or are not telecommunications services. In any case, we impose
the data roaming rule described herein based on our authority under Title III.

D.

Dispute Resolution

71.
Background. In the Second Further Notice, we sought comment on the appropriate
process for dispute resolution and whether we should provide the same process for data roaming requests
as for voice roaming requests.214 We also sought comment on whether we should adopt measures to
require or encourage the resolution of data roaming disputes through alternative dispute resolution
procedures such as arbitration.215 In addition, we asked whether there are any legal considerations,
limitations, or concerns the Commission should consider with respect to alternative dispute resolution
procedures and whether such procedures should be applicable more generally to roaming disputes if they
are appropriate for data roaming disputes.216
72.
Some commenters urge the Commission to adopt mandatory mediation or arbitration
procedures for resolving data roaming disputes. NTCH asserts that the Commission should require
mandatory mediation of data roaming disputes prior to the initiation of a complaint.217 Cox states that the
Commission should "backstop" the negotiation of roaming agreements by providing a forum for
"reasonably fast resolution through mediating or, if necessary, arbitrating agreements."218 RCA asserts


210 See, e.g., Clearwire Comments at 10-11; Cellular South Comments at 7-9; Leap Comments at 15-25;
MetroPCS Comments at 8-33; RTG Comments at 4-5.
211 MetroPCS Comments at 8-33.
212 MetroPCS Comment at 18. See also Letter from Carl W. Northrop, Counsel to MetroPCS, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 05-265, filed Nov. 22, 2010.
213 Leap Reply Comments at 16.
214 Second Further Notice, 25 FCC Rcd 4181, 4223-24 91.
215 Id.
216 Id.
217 NTCH Comments at 5.
218 Cox Reply Comments at 6-7.
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that the Commission should adopt a "stalemate resolution process" that requires arbitration or mediation
if a receiving carrier stonewalls or ignores roaming requests.219 Other commenters argue that the
Commission should adopt measures to expedite the resolution of all roaming disputes and place all such
disputes into the accelerated docket process.220 AT&T disagrees that the Commission should require
mediation or arbitration, or that all roaming disputes should be placed on the Commission's accelerated
docket.221 AT&T states that the Commission in the 2007 Report and Order rejected proposals to handle
all voice roaming complaints via its accelerated docket, and there is no reason to depart from that ruling
now.222 In addition, AT&T argues that disputes regarding data roaming will raise novel engineering and
technical issues that make them even less likely to be resolved appropriately on an accelerated basis.223
73.
Some commenters also urge the Commission to adopt criteria or factors to use in
resolving data roaming disputes. Bright House Networks urges us to use the factors we set forth for
consideration in voice roaming disputes in the 2010 Order on Reconsideration,224 as well as additional
criteria related to the reasonableness of a provider's proposed rates.225 T-Mobile also urges us to use the
factors from the 2010 Order on Reconsideration but argues that we should add some new factors and
delete others.226

74.
Discussion. To the extent that a complaint proceeding is an appropriate procedural
vehicle to resolve a particular dispute arising out of the negotiation of a data roaming arrangement, we
find that it is in the public interest to establish a complaint process similar to the complaint process


219 RCA Comments at 17.
220 See e.g., T-Mobile Comments at 20-21 (urging the Commission to adopt expedited procedures for roaming
disputes, including an accelerated docket process for roaming disputes; a mandatory 21-day supervised settlement
period; expedited discovery of parties' roaming agreements with third parties, subject to nondisclosure and
confidentiality requirements; express authority for Commission staff to interpret and decide roaming complaints;
and specific time periods governing roaming complaint decisions and appeals); SouthernLINC Reply Comments at
28-29; Letter from Shirley S. Fujimoto and David D. Rines, Counsel, SouthernLINC to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 05-265, Oct. 21, 2010 at 12-13 (SouthernLINC Oct. 21, 2010 Ex Parte); Bright
House Comments at 14; BendBroadband Reply Comments at 5.
221 AT&T Reply Comments at 53-54.
222 Id. at 54.
223 Id.
224 See Order on Reconsideration, 25 FCC Rcd 4181, 4200-4201 39 (setting out factors that the Commission may
consider when resolving disputes that are brought before it).
225 Bright House Networks argues that the Commission should develop additional factors, such as examination of a
provider's retail yield, for disputes that focus primarily on rates. See Bright House Comments at 13-14; see also
Bright House Nov. 22, 2010 Ex Parte at 1 (proposing that the Commission use retail yield as a possible test for the
reasonableness of charges); BendBroadband Reply Comments at 5 (agreeing with Bright House Networks that the
Commission should develop criteria it will use in resolving roaming disputes and that it should be willing to review
providers' proposed rates); SouthernLINC Reply Comments at 27-28 (the Commission should use the factors it
identified in the voice roaming context but also should "evaluate the reasonableness of the rates being offered by the
host carrier, particularly to the extent that the offered rates are tantamount to a denial of data roaming"); U.S.
Cellular Reply Comments at 5 (host carriers should provide data roaming on reasonable terms and conditions); RCA
Comments at 16 (the Commission should require that data roaming terms and conditions are just and reasonable).
226 See T-Mobile Comments at 20; Letter from Howard J. Symons, Counsel, T-Mobile-USA to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 05-265, Oct. 14, 2010, Attachment at 7-8 (T-Mobile Oct. 14, 2010 Ex Parte).
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available under the current roaming obligations.227 Specifically, to ensure consistent Commission
processes for resolving all voice and data roaming disputes where a complaint is the appropriate
procedural vehicle, we will use the procedural complaint processes established in the Commission's Part
1, Subpart E rules for data roaming to the extent discussed herein.228 Disputes will be resolved based on
the totality of the circumstances. The remedy of damages will not be available for data roaming
complaints.
75.
Parties may file a formal or informal complaint under the Commission's Part I, Subpart E
rules229 or file a petition for declaratory ruling under Section 1.2 of the Commission's rules230 to resolve
any disputes arising out of the data roaming rule adopted herein.231 These procedural mechanisms are
currently available for resolving voice roaming disputes, and we find that it is in the public interest to
ensure a consistent Commission process for resolving both voice and data roaming complaints.
Moreover, some roaming disputes will involve both data and voice and are likely to have factual issues
common to both types of roaming. The approach we are taking allows, but does not require, a party to
bring a single proceeding to address such a dispute, rather than having to bifurcate the matter and initiate
two separate proceedings under two different sets of procedures. This, in turn, will be more efficient for
the parties involved, as well as for the Commission, and should result in faster resolution of such disputes.
76.
With respect to remedies, we exclude provisions applicable to damages in this context.
We note that the remedy of damages after hearing on a complaint is specifically provided for in Section
209 of the Communications Act and applicable to claims arising out of Section 208 complaints.232 This
means that if a complaint alleges violations with respect to both voice and data roaming, damages
potentially are available as a remedy for only the portion of the complaint that deals with roaming
obligations arising out of Sections 201, 202, and 208 of the Act.233
77.
When roaming-related complaints or petitions for declaratory ruling are filed, we intend
to address them expeditiously. Further, we note that the Accelerated Docket procedures, including pre-
complaint mediation, will be available to data roaming complaints.234 Several commenters requested use


227 See 47 C.F.R. 20.12; see also SouthernLINC Oct. 21, 2010 Ex Parte at 12-13 (asserting that the Commission
has authority to apply the Section 208 complaint procedures to complaints involving data roaming).
228 Specifically, we are extending, as applicable, the procedural rules in the Commission's Part I, Subpart E rules, 47
C.F.R. 1.716-1.718, 1.720, 1.721, and 1.723-1.735, to disputes arising out of the data roaming rules.
229 See 47 C.F.R. 1.716-1.718, 1.720, 1.721, and 1.723-1.735.
230 47 C.F.R. 1.2.
231 As discussed below, extending the procedural complaint processes established in the Commission's Part 1,
Subpart E rules to complaints regarding data roaming will require approval by the Office of Management and
Budget pursuant to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. We note that the
Commission's rules already provide for the use of petitions for declaratory ruling for the purpose of "terminating a
controversy or removing uncertainty" and the potential use of this vehicle to address data roaming controversies
therefore does not require PRA approval.
232 See 47 U.S.C. 209.
233 Section 1.722 of the Commission's rules, which addresses the recovery of damages in a complaint proceeding, is
not applicable to data roaming complaints. See 47 C.F.R. 1.722.
234 See 47 C.F.R. 1.730.
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of the Commission's Accelerated Docket procedures to resolve all roaming complaints.235 Although all
roaming complaints will not automatically be placed on the Accelerated Docket, an affected provider can
seek consideration of its complaint under the Commission's Accelerated Docket rules and procedures
where appropriate.
78.
We note that the duty to offer data roaming arrangements on commercially reasonable
terms and conditions will allow greater flexibility and variation in terms and conditions, as parties will
negotiate their rights and obligations under the agreements. We expect providers to include any material
practices regarding provisioning of roaming in the agreement (e.g., any practice to manage roaming
traffic in times of congestion) because many disputes arising out of provisioning of roaming will be
subject to the roaming contract provisions and generally applicable laws. To provide parties with
additional certainty regarding rights and obligations and to facilitate timely resolution of disputes, we
provide the following clarifications and guidance.
79.
During ongoing negotiations, parties can seek Commission dispute resolution including
a determination whether the host provider has met its duty. We will consider claims regarding the
commercial reasonableness of the negotiations, providers' conduct, and the terms and conditions of the
proffered data roaming arrangement. With respect to claims regarding the commercial reasonableness of
the proffered terms and conditions, including prices, the Commission staff may, in resolving such claims,
require both parties to provide to the Commission their best and final offers (final offers) that were
presented during the negotiation. For example, if negotiations fail to produce a mutually acceptable set of
terms and conditions, including rates, the Commission staff may require parties to submit on a
confidential basis their final offers, including price, in the form of a proposed data roaming contract.236
These submissions would enable Commission staff, if it so chose, to resolve a particular roaming dispute
in which a violation of our rules is found by ordering the parties to enter into a data roaming agreement
pursuant to the terms of the complainant's commercially reasonable final offer or to otherwise rely on the
submitted offers in determining an appropriate remedy. In cases where no violation of our rules is found,
the complainant would be free, but not obligated, to enter into a roaming agreement on the proffered
terms of the would-be host. The Commission staff also could order the parties to resume negotiations.
The Commission staff's determination of the appropriate steps in resolving a particular dispute would
depend in part of an assessment of the actions of both the host provider and the requesting provider.
80.
With respect to disputes filed before reaching an agreement regarding the commercial
reasonableness of a would-be host provider's proffered terms and conditions, we find that it is in the
public interest to provide a possible avenue for the requesting provider to obtain data roaming service on
an interim basis during the pendency of the dispute. Accordingly, in a case where a requesting provider
disputes the commercial reasonableness of a roaming arrangement offered by a would-be host and none
of the limitations is applicable,237 the Commission staff may, if requested and in appropriate


235 See T-Mobile Comments at 20; SouthernLINC Reply Comments at 28; SouthernLINC Oct. 21, 2010 Ex Parte at
12-13; see also Bright House Comments at 14 (urging the Commission to adopt an accelerated process for roaming
disputes); BendBroadband Reply Comments at 5 (supporting an expedited resolution process for roaming
complaints).
236 Of course, at any time following the submission of the final offers and prior to the Commission's staff's decision,
either party may accept the other party's final offer, at which point the offer will become a binding contract between
the parties.
237 As discussed above, the duty to offer data roaming arrangements is subject to certain specified limitations, such
that a host provider may not have an obligation to offer data roaming arrangements to a requesting provider. See
supra
III.B.
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circumstances, order the host provider to provide data roaming on its proffered terms, during the
pendency of the dispute, subject to possible true-up once the roaming agreement is in place. Similarly, if
the Commission staff chooses to require submission of final offers as discussed above, in appropriate
circumstances the Commission staff could order the host provider to provide data roaming in accordance
with its final offer, subject to possible true-up. The ability to obtain data roaming service on an interim
basis during the pendency of the dispute would enable the requesting provider's subscribers to obtain data
roaming coverage without undue delay while the Commission staff considers the dispute. Alternatively,
the parties may agree prior to the filing of the dispute to an interim roaming arrangement that will govern
during the pendency of the dispute. Further, in the event a would-be host provider violates its duty by
actions that unduly delay or stonewall the course of negotiations, we stand ready to move expeditiously
with fines, forfeitures, and other appropriate remedies, which should reduce any incentives to delay data
roaming negotiations.
81.
After the parties have entered into a data roaming agreement, the terms of the agreement
generally will govern the data roaming rights and obligations of the parties, and disputes relating to
performance, validity, or interpretation of the agreement will be subject to review in court under the
relevant contract law, with certain exceptions. For instance, parties may bring before the Commission a
claim that a host provider's conduct during negotiations violated the federal duty to offer a data roaming
arrangement with commercially reasonable terms and conditions. In addition, the requesting provider
may show that a host provider engaged in undue delay, or negotiated without any intent to perform.
Further, we provide that a requesting provider could file a complaint or petition for declaratory ruling
regarding the commercial reasonableness of the agreed terms and conditions to the extent such claims are
based on new information that the requesting provider reasonably did not know prior to signing the
agreement. Because the standard of commercial reasonableness is one that we expect to accommodate a
variety of terms and conditions in data roaming, and to discourage frivolous claims regarding the
reasonableness of the terms and conditions in a signed agreement, we will presume in such cases that the
terms of a signed agreement meet the reasonableness standard and will require a party challenging the
reasonableness of any term in the agreement to rebut that presumption.
82.
We further clarify that the Enforcement Bureau has delegated authority to resolve
complaints arising out of the data roaming rule.238 We note that the Wireless Telecommunications
Bureau has delegated authority to resolve other disputes with respect to the data roaming rule adopted
herein. We also note that whether or not the appropriate procedural vehicle is a complaint under Section
20.12(e) or a petition for declaratory ruling under Section 1.2 may vary depending on the circumstances
of each case. If a dispute arises regarding data roaming, parties are encouraged to contact Commission
staff for procedural guidance and for negotiations using the Commission's informal dispute resolution
processes.
83.
Some commenters propose other measures for resolving data roaming disputes or
roaming disputes in general, such as mandatory mediation or arbitration.239 Although we are not adopting
any such mandatory processes, we note that providers are free to negotiate and mutually agree to other
processes, such as third party mediation or arbitration, as a means to resolve the roaming dispute.
84.
A few commenters propose that we adopt a time limit for roaming negotiations to limit


238 We add appropriate clarifying language to this effect to the rule governing the functions of the Enforcement
Bureau. See Appendix A (modification to 47 C.F.R. 0.111(a)(11)).
239 See NTCH Comments at 5; Cox Reply Comments at 6-7; RCA Comments at 17.
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the opportunity for host carriers to delay in negotiating roaming agreements.240 We decline to adopt a
specific time limit because some data roaming negotiations may be more complex or fact-intensive than
others and are likely to require more time. A single time limit for all negotiations would not be
appropriate in such cases. As part of the requirement to offer a data roaming arrangement, we expect
parties to proceed with such negotiations in a timely manner and to avoid stonewalling behavior or undue
delays. If a provider involved in a data roaming negotiation believes that another provider is delaying the
negotiation unduly, it may ask the Commission to set a time limit for that particular negotiation. We will
consider such requests on a case-by-case basis.
85.
Determination of Commercial Reasonableness. We will assess whether a particular data
roaming offering includes commercially reasonable terms and conditions or whether a provider's conduct
during negotiations, including its refusal to offer data roaming, is commercially reasonable, on a case-by-
case basis, taking into consideration the totality of the circumstances.241 As discussed above, providers
can negotiate different terms and conditions, including prices, with different parties, where differences in
terms and conditions reasonably reflect actual differences in particular cases. Further, providers of
commercial mobile data services can negotiate commercially reasonable measures to safeguard quality of
service against network congestion that may result from data roaming traffic or to prevent harm to their
networks.242 Conduct that unreasonably restrains trade, however, is not commercially reasonable.
86.
In the interconnected services context, we listed factors we will take into account in
resolving roaming disputes that are brought before us.243 Some parties have asked us to use these factors,
or others, in resolving disputes that arise with respect to data roaming.244 These factors relate to public
interest benefits and costs of a data roaming arrangement offered in a particular case, including the impact
on investment, competition, and consumer welfare and whether a particular data roaming offering is
commercially reasonable. We find it is therefore appropriate to take them into account, as listed below,
and to the extent relevant in the data roaming context. We emphasize that each case will be decided
based on the totality of the circumstances. With that in mind, we clarify that, to guide us in determining
the reasonableness of the negotiations, providers' conduct, and the terms and conditions of the proffered
data roaming arrangements, including the prices, we may consider the following factors, as well as others:

whether the host provider has responded to the request for negotiation, whether it has
engaged in a persistent pattern of stonewalling behavior, and the length of time since the
initial request;


240 See, e.g., Cox Reply Comments at 6-8; RCA Comments at 17; SouthernLINC Reply Comments at 25 -26; U.S.
Cellular Reply Comments at 5.
241 See Order on Reconsideration, 25 FCC Rcd 4181, 4200 39.
242 See supra III.B. The record indicates that providers already commonly include in their negotiated roaming
agreements terms that give a host provider the ability to suspend roaming service if roaming becomes impractical for
reasons such as overload, outage, or other operational or technical issues. See Letter from Kathleen O'Brien Ham,
T-Mobile USA, Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 05-265, filed Dec. 20, 2010, at 4.
243 See id.
244 See, e.g., T-Mobile Comments at 20; T-Mobile Oct. 14, 2010 Ex Parte, Attachment at 7-8 (stating that the
Commission should use the factors it developed in the voice roaming context but should add some factors and delete
others); SouthernLINC Reply Comments at 27-28 (the Commission should use the factors it identified in the voice
roaming context but also should "evaluate the reasonableness of the rates being offered by the host carrier,
particularly to the extent that the offered rates are tantamount to a denial of data roaming").
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whether the terms and conditions offered by the host provider are so unreasonable as to be
tantamount to a refusal to offer a data roaming arrangement;

whether the parties have any roaming arrangements with each other, including roaming for
interconnected services such as voice, and the terms of such arrangements;

whether the providers involved have had previous data roaming arrangements with similar
terms;

the level of competitive harm in a given market and the benefits to consumers;

the extent and nature of providers' build-out;

significant economic factors, such as whether building another network in the geographic
area may be economically infeasible or unrealistic, and the impact of any "head-start"
advantages;

whether the requesting provider is seeking data roaming for an area where it is already
providing facilities-based service;

the impact of the terms and conditions on the incentives for either provider to invest in
facilities and coverage, services, and service quality;

whether there are other options for securing a data roaming arrangement in the areas subject
to negotiations and whether alternative data roaming partners are available;

events or circumstances beyond either provider's control that impact either the provision of
data roaming or the need for data roaming in the proposed area(s) of coverage;

the propagation characteristics of the spectrum licensed to the providers;

whether a host provider's decision not to offer a data roaming arrangement is reasonably
based on the fact that the providers are not technologically compatible;

whether a host provider's decision not to enter into a roaming arrangement is reasonably
based on the fact that roaming is not technically feasible for the service for which it is
requested;

whether a host provider's decision not to enter into a roaming arrangement is reasonably
based on the fact that changes to the host network necessary to accommodate the request are
not economically reasonable;

whether a host provider's decision not to make a roaming arrangement effective was
reasonably based on the fact that the requesting provider's provision of mobile data service to
its own subscribers has not been done with a generation of wireless technology comparable to
the technology on which the requesting provider seeks to roam;

other special or extenuating circumstances.
87.
We emphasize that these factors are not exclusive or exhaustive and that providers may
argue that the Commission should consider other relevant factors in determining the commercial
reasonableness of the negotiations, providers' conduct, and the terms and conditions of the proffered data
roaming arrangements, including the prices. In addition, in making this determination we also will
consider all relevant precedents and decisions by the Commission.
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E.

Other Issues

88.
Advertising. In the Second Further Notice, we sought comment on whether we should
"clarify that a carrier that obtains automatic roaming from another carrier does not have a right to
advertise that it offers its subscribers roaming on a particular host carrier's network absent a voluntary
agreement of the host carrier" and whether such measure would help to "prevent free riding on the value
of the host carrier's brand name recognition and service quality reputation."245 We now clarify that we do
not intend the rule we adopt today to be construed as permitting a provider that obtains roaming from
another provider to use the trade name of a host provider when it advertises extended coverage due to
roaming, unless the parties to the roaming agreement agree otherwise. Although Cellular South argues
any such restrictions are not necessary or appropriate,246 we agree with AT&T that providers can make
significant capital and marketing investments with respect to differentiating the quality and brand image
of their networks from competitors.247 Also, we are concerned that construing the rule we adopt as
allowing a roaming provider to engage in unauthorized use of a competitor's brand name recognition
and/or service quality reputation as a means of differentiating the roaming provider's own service may
indeed encourage the use of roaming as de facto resale.248 The Commission has previously stated with
regard to automatic roaming for voice and data services for CMRS providers that "automatic roaming
obligations can not be used as a backdoor way to create de facto mandatory resale obligations or virtual
reseller networks."249 As requested,250 we also further clarify that we do not intend the data roaming rule
we establish in this order to disturb any provider's existing right, under applicable law, to advertise the
geographic reach of their services, as extended by roaming agreements, and to use data roaming to expand
their advertised service area, where under applicable law there is no unauthorized use of a competitor's
brand name and/or image associated with such advertising.
89.
Spectrum Sharing. In the Second Further Notice, we sought comment on what other
actions might be appropriate to address spectrum capacity needs that may arise out of data roaming or to
help ensure that spectrum is utilized to the fullest extent possible, including, for example, whether
facilitating spectrum sharing arrangements between a host provider and a requesting provider would be
helpful or appropriate.251 After review of the record, we find there is an insufficient basis to make a
determination on spectrum sharing in the context of data roaming services at this time.252 The one
comment addressing the issue does so briefly in a footnote and provides no detail on how such a
requirement would be implemented.253 Given the very limited record on this option, we find that
requiring spectrum sharing arrangements as a condition for commercial mobile data services roaming
arrangements is not warranted at this time.


245 Second Further Notice, 25 FCC Rcd at 4219 76.
246 Cellular South Comments at 16.
247 AT&T Comments at 68.
248 See AT&T Comments at 68.
249 Report and Order, 22 FCC Rcd at 15836 51 (footnote omitted).
250 See Cox Reply Comments at 9; Free Press Comments at 5.
251Second Further Notice, 25 FCC Rcd at 4221 83.
252 Id.
253 See AT&T Comments at 68 n.172.
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IV.

PROCEDURAL MATTERS

A.

Final Regulatory Flexibility Analysis

90.
As required by the Regulatory Flexibility Act of 1980 ("RFA"),254 the Commission has
prepared a Final Regulatory Flexibility Analysis ("FRFA") relating to the Second Report and Order. The
FRFA is set forth in Appendix C.

B.

Paperwork Reduction Analysis

91.
This document contains modified information collection requirements subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of
Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public,
and other Federal agencies are invited to comment on the modified information collection requirements
contained in this proceeding. In addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might "further
reduce the information collection burden for small business concerns with fewer than 25 employees."
92.
In this present document, we have assessed the effects of using the procedural complaint
processes established in the Commission's Part 1, Subpart E rules, including applicable filing and
discovery procedures, to govern the process for data roaming complaints, and find that this will ensure
that voice and data roaming complaints are resolved under a consistent Commission process, which will
reduce the regulatory burden of understanding and using these processes, and will allow a party to bring a
single proceeding to address a roaming dispute that involves both voice and data services. This will, in
turn, be more efficient for providers and result in faster resolution of such disputes.

C.

Congressional Review Act

93.
The Commission will send a copy of this Second Report and Order to Congress and the
Government Accountability Office, pursuant to the Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).

V.

ORDERING CLAUSES

94.
Accordingly, IT IS ORDERED, pursuant to the authority contained in Sections 1, 4(i),
4(j), 301, 303, 304, 309, 316, and 332 of the Communications Act of 1934, as amended, and Section 706
of the Telecommunications Act of 1996, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 304,
309, 316, 332, and 1302, that this SECOND REPORT AND ORDER in WT Docket No. 05-265 IS
HEREBY ADOPTED.
95.
IT IS FURTHER ORDERED that Parts 0 and 20 of the Commission's rules, 47 C.F.R.
Parts 0 and 20, are AMENDED as set forth in Appendix A, and such rule amendments shall be effective
30 days after the date of publication of the text thereof in the Federal Register, except for 20.12(e)(2),
which contains an information collection that is subject to OMB approval.
96.
IT IS FURTHER ORDERED that 20.12(e)(2) and the information collection contained
in this Second Report and Order WILL BECOME EFFECTIVE following approval by the Office of
Management and Budget. The Commission will publish a document at a later date establishing the
effective date.
97.
IT IS FURTHER ORDERED that, pursuant to Section 5(c) of the Communications Act
of 1934, as amended, 47 U.S.C. 155(c), the Enforcement Bureau and the Wireless Telecommunications


254 See 5 U.S.C. 604.
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Bureau ARE GRANTED DELEGATED AUTHORITY to resolve any disputes arising out of the data
roaming rule, as set forth in this SECOND REPORT AND ORDER and the rules in Appendix A.
98.
IT IS FURTHER ORDERED that the Commission's Consumer and Governmental
Affairs Bureau, Reference Information Center, SHALL SEND a copy of this SECOND REPORT AND
ORDER, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the
Small Business Administration.
99.
IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this
SECOND REPORT AND ORDER in a report to be sent to Congress and the Government Accountability
Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A

Final Rules

PART 0 Commission Organization

PART 0 COMMISSION ORGANIZATION

Subpart A Organization


1. The authority citation for Part 0 continues to read as follows:
AUTHORITY: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.

2. Section 0.111(a) is amended by revising subparagraph (11) to read as follows:
0.111 Functions of the Bureau.
(a)
* * * * *
(11) Resolves other complaints against Title III licensees and permittees, including complaints under
20.12(e) of this chapter.
* * * * *

PART 20 Commercial Mobile Radio Services

PART 20 COMMERCIAL MOBILE RADIO SERVICES


1. The authority citation for Part 20 is revised to read as follows:
AUTHORITY: 47 U.S.C. 154, 160, 201, 251-254, 301, 303, 316, and 332 unless otherwise noted.
Section 20.12 also issued under 47 U.S.C. 1302.

2. Part 20 is amended by revising its title to read as follows:

PART 20 COMMERCIAL MOBILE SERVICES

* * * * *

3. Section 20.3 is amended by adding the definition "Commercial Mobile Data Service" after
"Automatic Roaming" to read as follows"
* * * * *
Commercial Mobile Data Service. Any mobile data service that is not interconnected with the public
switched network and is: (1) provided for profit; and (2) available to the public or to such classes of
eligible users as to be effectively available to the public. Commercial mobile data service includes
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services provided by Mobile Satellite Services and Ancillary Terrestrial Component providers to the
extent the services provided meet this definition.
* * * * *

4. Part 20.12 is amended by adding the following new paragraph (a)(3) after paragraph (a)(2) to
read as follows:
* * * * *
(3) Scope of Offering Roaming Arrangements for Commercial Mobile Data Services. Paragraph (e) of
this section is applicable to all facilities-based providers of commercial mobile data services.
5. Part 20.12 is amended by adding new paragraph (e) to read as follows:
20.12 Resale and roaming.
* * * * *
(e)
Offering Roaming Arrangements for Commercial Mobile Data Services.
(1) A facilities-based provider of commercial mobile data services is required to offer roaming
arrangements to other such providers on commercially reasonable terms and conditions, subject to the
following limitations: (1) providers may negotiate the terms of their roaming arrangements on an
individualized basis; (2) it is reasonable for a provider not to offer a data roaming arrangement to a
requesting provider that is not technologically compatible; (3) it is reasonable for a provider not to offer a
data roaming arrangement where it is not technically feasible to provide roaming for the particular data
service for which roaming is requested and any changes to the host provider's network necessary to
accommodate roaming for such data service are not economically reasonable; and (4) it is reasonable for a
provider to condition the effectiveness of a roaming arrangement on the requesting provider's provision
of mobile data service to its own subscribers using a generation of wireless technology comparable to the
technology on which the requesting provider seeks to roam.
(2) A party alleging a violation of this section may file a formal or informal complaint pursuant to the
procedures in 1.716-1.718, 1.720, 1.721, and 1.723-1.735 of this chapter, which sections are
incorporated herein. For purposes of section 20.12(e), references to a "carrier" or "common carrier" in
the formal and informal complaint procedures incorporated herein will mean a provider of commercial
mobile data services. The Commission will resolve such disputes on a case-by-case basis, taking into
consideration the totality of the circumstances presented in each case. The remedy of damages shall not
be available in connection with any complaint alleging a violation of this section. Whether the
appropriate procedural vehicle for a dispute is a complaint under this paragraph or a petition for
declaratory ruling under 1.2 of this chapter may vary depending on the circumstances of each case.
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APPENDIX B

List of Commenters and Reply Commenters

Commenters

ACS Wireless, Inc. (ACSW)
AT&T Inc. (AT&T)
Blooston Rural Carriers (Blooston)
Bright House Networks (Bright House)
Cellular South, Inc. (Cellular South)
Cincinnati Bell Wireless LLC (Cincinnati Bell)
Clearwire Corporation (Clearwire)
Free Press (Free Press)
Leap Wireless International, Inc. & Cricket Communications, Inc. (Leap)
Media Access Project
MetroPCS Communications, Inc. (MetroPCS)
NTCH, Inc. (NTCH)
NTELOS Inc. (NTELOS)
The Organization for the Advancement of Small Telecommunications Companies (OPASTCO) & the
National Telecommunications Cooperative Association (NTCA)
Rural Cellular Association (RCA)
Rural Telecommunications Group, Inc. (RTG)
SkyTerra Subsidiary LLC (SkyTerra)
Southern Communications Services, Inc. d/b/a SouthernLINC Wireless (SouthernLINC)
Sprint Nextel Corporation (Sprint)
T-Mobile USA, Inc. (T-Mobile)
United States Cellular Corporation (U.S. Cellular)
Verizon Wireless

Reply Commenters

AT&T
Bend Cable Communications, LLC d/b/a BendBroadband (BendBroadband)
Blooston
Clearwire
Cellular South
Cox Communications (Cox)
Free Press
Leap
MetroPCS
National Cable & Telecommunications Association (NCTA)
NTELOS
RCA
RTG
SouthernLINC
T-Mobile
U.S. Cellular
Verizon Wireless
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APPENDIX C

Final Regulatory Flexibility Analysis

1.
As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1 an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the Order on Reconsideration and Second
Further Notice of Proposed Rulemaking in WT Docket No. 05-265.2 The Commission sought written
public comment on the proposals in the Second Further Notice, including comment on the IRFA. The
comments received are discussed below. This present Final Regulatory Flexibility Analysis (FRFA)
conforms to the RFA.3

A.

Need for, and Objectives of, the Proposed Rules

2.
In the Second Further Notice that we adopted in conjunction with the Order on
Reconsideration in 2010, we sought to refresh and further develop the record by requesting additional
comment on whether to extend roaming obligations to mobile data services, including mobile broadband
Internet access, that are provided without interconnection to the public switched telephone network.4 The
objective of the rules adopted is to require providers of commercial mobile data services to offer data
roaming arrangements on commercially reasonable terms and conditions, pursuant to our authority under
the Communications Act. In addition, we also clarify that providers of commercial mobile data roaming
services are permitted to negotiate commercially reasonable measures to safeguard quality of service
against network congestion that may result from roaming traffic or to prevent harm to their networks.
3.
This rule will apply to all facilities-based providers of commercial mobile data services
regardless of whether these entities are also providers of commercial mobile radio service (CMRS).5 For
purposes of data roaming, we define a "commercial mobile data service" as any mobile data service that
is not interconnected with the public switched network but is (1) provided for profit; and (2) available to
the public or to such classes of eligible users as to be effectively available to the public.


1 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. No. 104-121, Title II, 110 Stat. 857 (1996).
2 Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of
Mobile Data Services, WT Docket No. 05-265, Order on Reconsideration and Second Further Notice of Proposed
Rulemaking
, 25 FCC Rcd 4181 (2010).
3 See 5 U.S.C. 604.
4 The Commission had received several proposals concerning data roaming in response to the Further Notice,
including a request by SpectrumCo that the Commission reconsider its decision to limit the automatic roaming
obligation only to services that use the public switched network. See Second Further Notice, 25 FCC Rcd at 4212-
13 63. The Commission noted that issues in SpectrumCo's petition for reconsideration were being addressed in the
Second Further Notice. Id. at 4185 9.
5 For purposes of this proceeding, "commercial mobile data service" is defined as any mobile data service that is not
interconnected with the public switched network but is (1) provided for profit; and (2) available to the public or to
such classes of eligible users as to be effectively available to the public. 47 C.F.R. 20.12. The current roaming
obligation in Section 20.12 applies to CMRS carriers' provision of mobile voice and data services that are
interconnected with the public switched network, as well as their provision of text messaging and push-to-talk
services. The data roaming rule adopted herein will cover mobile services that fall outside the scope of the current
automatic roaming obligation if provided for profit; and available to the public or to such classes of eligible users as
to be effectively available to the public.
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4.
Below, we describe the duty of providers of commercial mobile data services to offer
data roaming arrangements on commercially reasonable terms and conditions subject to certain
limitations. When a request for data roaming negotiations is made, as a part of the duty of providers to
offer data roaming arrangements on commercially reasonable terms and conditions, a would-be host
provider has a duty to respond promptly to the request and avoid actions that unduly delay or stonewall
the course of negotiations regarding that request. We will determine whether the terms and conditions of
a proffered data roaming arrangement are commercially reasonable on a case-by-case basis, taking into
consideration the totality of the circumstances. The duty to offer data roaming arrangements on
commercially reasonable terms and conditions is subject to certain limitations. In particular: (1)
providers may negotiate the terms of their roaming arrangements on an individualized basis; (2) it is
reasonable for a provider not to offer a data roaming arrangement to a requesting provider that is not
technologically compatible; (3) it is reasonable for a provider not to offer a data roaming arrangement
where it is not technically feasible to provide roaming for the particular data service for which roaming is
requested and any changes to the host provider's network necessary to accommodate roaming for such
data service are not economically reasonable; and (4) it is reasonable for a provider to condition the
effectiveness of a data roaming arrangement on the requesting provider's provision of mobile data service
to its own subscribers using a generation of wireless technology comparable to the technology on which
the requesting provider seeks to roam.6

B.

Legal Basis

5.
The authority for the actions taken in this Second Report and Order is contained in
Sections 1, 4(i), 4(j), 301, 303, 304, 309, 316, and 332 of the Communications Act of 1934, as amended,
and Section 706 of the Telecommunications Act of 1996, as amended, 47 U.S.C. 151, 154(i), 154(j),
301, 303, 304, 309, 316, 332, and 1302.

C.

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

6.
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. The RFA generally
defines the term "small entity" as having the same meaning as the terms "small business," "small
organization," and "small governmental jurisdiction."7 In addition, the term "small business" has the
same meaning as the term "small business concern" under the Small Business Act.8 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).9


6 In other words, a provider offering service only through, for example, a 1xRTT or GPRS/EDGE network, would
not be able to rely on the data roaming obligation for this service to obtain roaming on a later generation EV-DO or
UMTS/HSPA network until it starts offering the later generation service.
7 5 U.S.C. 601(6).
8 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."
9 15 U.S.C. 632.
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7.
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 proposes in this Second Report
and Order. This rule will apply to all facilities-based providers of commercial mobile data services
regardless of whether these entities are also providers of commercial mobile radio service (CMRS).
8.
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 auction 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.
9.
Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureau
has placed wireless firms within this new, broad, economic census category.10 Prior to that time, such
firms were within the now-superseded categories of "Paging" and "Cellular and Other Wireless
Telecommunications."11 Under the present and prior categories, the SBA has deemed a wireless business
to be small if it has 1,500 or fewer employees.12 For the category of Wireless Telecommunications
Carriers (except Satellite), Census data for 2007, which supersede data contained in the 2002 Census,
show that there were 1,383 firms that operated that year.13 Of those 1,383, 1,368 had fewer than 100
employees, and 15 firms had more than 100 employees. Thus under this category and the associated
small business size standard, the majority of firms can be considered small. Similarly, according to
Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony,
including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio
(SMR) Telephony services.14 Of these, an estimated 261 have 1,500 or fewer employees and 152 have
more than 1,500 employees.15 Consequently, the Commission estimates that approximately half or more
of these firms can be considered small. Thus, using available data, we estimate that the majority of
wireless firms can be considered small.
10.
Broadband Personal Communications Service. The broadband personal communications
services (PCS) spectrum is divided into six frequency blocks designated A through F, and the
Commission has held auctions for each block. The Commission initially defined a "small business" for
C- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the three


10 U.S. Census Bureau, 2007 NAICS Definitions, "Wireless Communications Carriers (Except Satellite), NAICS
code 517210"; http://www.census.gov/naics/2007/def/ND517210.HTM#N517210.
11 U.S. Census Bureau, 2002 NAICS Definitions, "517211 Paging";
http://www.census.gov/epcd/naics02/def/NDEF517.HTM.; U.S. Census Bureau, 2002 NAICS Definitions, "517212
Cellular and Other Wireless Telecommunications"; http://www.census.gov/epcd/naics02/def/NDEF517.HTM.
12 13 C.F.R. 121.201, NAICS code 517210 (2007 NAICS). The now-superseded, pre-2007 C.F.R. citations were
13 C.F.R. 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).
13 U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 2009),
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&;-
ds_name=EC0751SSSZ5&-_lang=en.
14 See Trends in Telephone Service at Table 5.3.
15 See id.
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previous calendar years.16 For F-Block licenses, 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.17 These small business size
standards, in the context of broadband PCS auctions, have been approved by the SBA.18 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 claimed small business status in the first two C-Block
auctions. A total of 93 bidders that claimed small business status won approximately 40 percent of the
1,479 licenses in the first auction for the D, E, and F Blocks.19 On April 15, 1999, the Commission
completed the reauction of 347 C-, D-, E-, and F-Block licenses in Auction No. 22.20 Of the 57 winning
bidders in that auction, 48 claimed small business status and won 277 licenses.
11.
On January 26, 2001, the Commission completed the auction of 422 C and F Block
Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small
business status.21 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. On February
15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No.
58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses.22
On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in
Auction No. 71.23 Of the 12 winning bidders in that auction, five claimed small business status and won
18 licenses.24 On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block
Broadband PCS licenses in Auction No. 78.25 Of the eight winning bidders for Broadband PCS licenses
in that auction, six claimed small business status and won 14 licenses.26


16 See Amendment of Parts 20 and 24 of the Commission's Rules Broadband PCS Competitive Bidding and the
Commercial Mobile Radio Service Spectrum Cap; Amendment of the Commission's Cellular/PCS Cross-Ownership
Rule
; WT Docket No. 96-59, GN Docket No. 90-314, Report and Order, 11 FCC Rcd 7824, 785052, paras. 5760
(1996) ("PCS Report and Order"); see also 47 C.F.R. 24.720(b).
17 See PCS Report and Order, 11 FCC Rcd at 7852, para. 60.
18 See Alvarez Letter 1998.
19 See Broadband PCS, D, E and F Block Auction Closes, Public Notice, Doc. No. 89838 (rel. Jan. 14, 1997).
20 See C, D, E, and F Block Broadband PCS Auction Closes, Public Notice, 14 FCC Rcd 6688 (WTB 1999). Before
Auction No. 22, the Commission established a very small standard for the C Block to match the standard used for F
Block. Amendment of the Commission's Rules Regarding Installment Payment Financing for Personal
Communications Services (PCS) Licensees
, WT Docket No. 97-82, Fourth Report and Order, 13 FCC Rcd 15743,
15768, para. 46 (1998).
21 See C and F Block Broadband PCS Auction Closes; Winning Bidders Announced, Public Notice, 16 FCC Rcd
2339 (2001).
22 See Broadband PCS Spectrum Auction Closes; Winning Bidders Announced for Auction No. 58, Public Notice, 20
FCC Rcd 3703 (2005).
23 See Auction of Broadband PCS Spectrum Licenses Closes; Winning Bidders Announced for Auction No. 71,
Public Notice, 22 FCC Rcd 9247 (2007).
24 Id.
25 See Auction of AWS-1 and Broadband PCS Licenses Closes; Winning Bidders Announced for Auction 78, Public
Notice, 23 FCC Rcd 12749 (WTB 2008).
26 Id.
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12.
Narrowband Personal Communications Service. In 1994, the Commission conducted an
auction for Narrowband PCS licenses. A second auction was also conducted later in 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 41 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 was conducted in 2001. Here, five bidders won 317 (Metropolitan Trading Areas and
nationwide) licenses.33 Three of these claimed status as a small or very small entity and won 311
licenses.
13.
Specialized Mobile Radio. The Commission awards "small entity" bidding credits in
auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz 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 was completed in 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


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 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 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).
34 47 C.F.R. 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.
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channels was conducted in 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 conducted in 2002 and included 23 BEA
licenses. One bidder claiming small business status won five licenses.38
14.
The auction of the 1,050 800 MHz SMR geographic area licenses for the General
Category channels was conducted in 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.39 In an auction completed in 2000, a total of 2,800 Economic Area licenses in the
lower 80 channels of the 800 MHz SMR service were awarded40. 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.
15.
In addition, there are numerous incumbent site-by-site SMR licensees and licensees with
extended implementation authorizations in the 800 and 900 MHz bands. We do 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 $15 million. One
firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1500
or fewer employees.41 We assume, for purposes of this analysis, that all of the remaining existing
extended implementation authorizations are held by small entities, as that small business size standard is
approved by the SBA.
16.
AWS Services (17101755 MHz and 21102155 MHz bands (AWS-1); 19151920 MHz,
19952000 MHz, 20202025 MHz and 21752180 MHz bands (AWS-2); 21552175 MHz band (AWS-
3))
. For the AWS-1 bands, the Commission has defined 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.42 In 2006, the Commission conducted its first auction of AWS-1 licenses.43 In that initial AWS-
1 auction, 31 winning bidders identified themselves as very small businesses.44 Twenty-six of the


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).
39 See "800 MHz Specialized Mobile Radio (SMR) Service General Category (851-854 MHz) and Upper Band
(861-865 MHz) Auction Closes; Winning Bidders Announced," Public Notice, 15 FCC Rcd 17162 (2000).
40 See, "800 MHz SMR Service Lower 80 Channels Auction Closes; Winning Bidders Announced," Public Notice,
16 FCC Rcd 1736 (2000).
41 See generally 13 C.F.R. 121.201, NAICS code 517210.
42 See Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, Report and Order, 18 FCC
Rcd 25,162, App. B (2003), modified by Service Rules for Advanced Wireless Services In the 1.7 GHz and 2.1 GHz
Bands, Order on Reconsideration, 20 FCC Rcd 14,058, App. C (2005).
43 See "Auction of Advanced Wireless Services Licenses Scheduled for June 29, 2006; Notice and Filing
Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures for Auction No. 66," AU Docket
No. 06-30, Public Notice, 21 FCC Rcd 4562 (2006) ("Auction 66 Procedures Public Notice").
44 See "Auction of Advanced Wireless Services Licenses Closes; Winning Bidders Announced for Auction No. 66,"
Public Notice, 21 FCC Rcd 10,521 (2006) ("Auction 66 Closing Public Notice").
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winning bidders identified themselves as small businesses.45 In a subsequent 2008 auction, the
Commission offered 35 AWS-1 licenses.46 Four winning bidders identified themselves as very small
businesses, and three of the winning bidders identified themselves as a small business.47For AWS-2 and
AWS-3, although we do not know for certain which entities are likely to apply for these frequencies, we
note that the AWS-1 bands are comparable to those used for cellular service and personal
communications service. The Commission has not yet adopted size standards for the AWS-2 or AWS-3
bands but has proposed to treat both AWS-2 and AWS-3 similarly to broadband PCS service and AWS-1
service due to the comparable capital requirements and other factors, such as issues involved in relocating
incumbents and developing markets, technologies, and services.48
17.
Rural Radiotelephone Service. The Commission has not adopted a size standard for
small businesses specific to the Rural Radiotelephone Service.49 A significant subset of the Rural
Radiotelephone Service is the Basic Exchange Telephone Radio System ("BETRS").50 In the present
context, we will use the SBA's small business size standard applicable to Wireless Telecommunications
Carriers (except Satellite), i.e., an entity employing no more than 1,500 persons.51 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.
18.
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.52 The SBA has approved these definitions.53 The Commission auctioned geographic
area licenses in the WCS service. In the auction, which commenced on April 15, 1997 and closed on


45 See id.
46 See AWS-1 and Broadband PCS Procedures Public Notice, 23 FCC Rcd at 7499. Auction 78 also included an
auction of broadband PCS licenses.
47 See "Auction of AWS-1 and Broadband PCS Licenses Closes, Winning Bidders Announced for Auction 78,
Down Payments Due September 9, 2008, FCC Forms 601 and 602 Due September 9, 2008, Final Payments Due
September 23, 2008, Ten-Day Petition to Deny Period," Public Notice, 23 FCC Rcd 12,749 (2008).
48 Service Rules for Advanced Wireless Services in the 19151920 MHz, 19952000 MHz, 20202025 MHz and
21752180 MHz Bands et al., Notice of Proposed Rulemaking, 19 FCC Rcd 19,263, App. B (2005); Service Rules
for Advanced Wireless Services in the 21552175 MHz Band, Notice of Proposed Rulemaking, 22 FCC Rcd 17,035,
App. (2007); Service Rules for Advanced Wireless Services in the 2155-2175 MHz Band, Further Notice of
Proposed Rulemaking
, 23 FCC Rcd 9859, App. B (2008).
49 The service is defined in 22.99 of the Commission's Rules, 47 C.F.R. 22.99.
50 BETRS is defined in 22.757 and 22.759 of the Commission's Rules, 47 C.F.R. 22.757 and 22.759.
51 13 C.F.R. 121.201, NAICS code 517210.
52 Amendment of the Commission's Rules to Establish Part 27, the Wireless Communications Service (WCS),
Report and Order, 12 FCC Rcd 10785, 10879 194 (1997).
53 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.
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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.
19.
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 small business size standard for
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. The SBA has deemed a wireless business to be small if it has
1,500 or fewer employees.54 For this service, the SBA uses the category of Wireless Telecommunications
Carriers (except Satellite). Census data for 2007, which supersede data contained in the 2002 Census,
show that there were 1,383 firms that operated that year.55 Of those 1,383, 1,368 had fewer than 100
employees, and 15 firms had more than 100 employees. Thus under this category and the associated
small business size standard, the majority of firms can be considered small.
20.
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 a new service, and is subject to spectrum auctions. In
the 220 MHz Third Report and Order, the 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.56 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.57 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.58 The SBA has approved these small size
standards.59 Auctions of Phase II licenses commenced on and closed in 1998.60 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.61 Thirty-nine small businesses won 373 licenses in the first 220 MHz auction.


54 13 C.F.R. 121.201, NAICS code 517210 (2007 NAICS). The now-superseded, pre-2007 C.F.R. citations were
13 C.F.R. 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).
55 U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 2009),
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&;-
ds_name=EC0751SSSZ5&-_lang=en.
56 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, 11068-70 291-295 (1997).
57 Id. at 11068 291.
58 Id.
59 See Letter to Daniel Phythyon, Chief, Wireless Telecommunications Bureau, Federal Communications
Commission, from Aida Alvarez, Administrator, Small Business Administration, dated January 6, 1998 (Alvarez to
Phythyon Letter 1998
).
60 See generally "220 MHz Service Auction Closes," Public Notice, 14 FCC Rcd 605 (WTB 1998).
61 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).
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A second auction included 225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies
claiming small business status won 158 licenses.62 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.63 In 2007, the Commission conducted a fourth auction of the 220 MHz licenses.64 Bidding
credits were offered to small businesses. A bidder with attributed average annual gross revenues that
exceeded $3 million and did not exceed $15 million for the preceding three years ("small business")
received a 25 percent discount on its winning bid. A bidder with attributed average annual gross revenues
that did not exceed $3 million for the preceding three years received a 35 percent discount on its winning
bid ("very small business"). Auction 72, which offered 94 Phase II 220 MHz Service licenses, concluded
in 2007.65 In this auction, five winning bidders won a total of 76 licenses. Two winning bidders
identified themselves as very small businesses won 56 of the 76 licenses. One of the winning bidders that
identified themselves as a small business won 5 of the 76 licenses won.
21.
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.66 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.67 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.68 SBA approval of these
definitions is not required.69 In 2000, the Commission conducted an auction of 52 Major Economic Area


62 See "Phase II 220 MHz Service Spectrum Auction Closes," Public Notice, 14 FCC Rcd 11218 (WTB 1999).
63 See "Multi-Radio Service Auction Closes," Public Notice, 17 FCC Rcd 1446 (WTB 2002).
64 See "Auction of Phase II 220 MHz Service Spectrum Scheduled for June 20, 2007, Notice and Filing
Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures for Auction 72, Public Notice, 22
FCC Rcd 3404 (2007).
65 See "Auction of Phase II 220 MHz Service Spectrum Licenses Closes, Winning Bidders Announced for Auction
72, Down Payments due July 18, 2007, FCC Forms 601 and 602 due July 18, 2007, Final Payments due August 1,
2007, Ten-Day Petition to Deny Period, Public Notice, 22 FCC Rcd 11573 (2007).
66 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).
67 Id. at 5343 108.
68 Id.
69 Id. at 5343 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).
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("MEA") licenses.70 Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these
bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band
licenses commenced and closed in 2001. All eight of the licenses auctioned were sold to three bidders.
One of these bidders was a small business that won a total of two licenses.71
22.
Upper 700 MHz Band Licenses. In the 700 MHz Second Report and Order, the
Commission revised its rules regarding Upper 700 MHz licenses.72 On January 24, 2008, the
Commission commenced Auction 73 in which several licenses in the Upper 700 MHz band were
available for licensing: 12 Regional Economic Area Grouping licenses in the C Block, and one
nationwide license in the D Block.73 The auction concluded on March 18, 2008, with 3 winning bidders
claiming very small business status (those with attributable average annual gross revenues that do not
exceed $15 million for the preceding three years) and winning five licenses.
23.
Lower 700 MHz Band Licenses. The Commission previously adopted criteria for
defining three groups of small businesses for purposes of determining their eligibility for special
provisions such as bidding credits.74 The Commission 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.75 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.76 Additionally, the lower 700 MHz Service had a third category of small
business status for Metropolitan/Rural Service Area (MSA/RSA) licenses--"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.77 The SBA approved these small size
standards.78 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)) was conducted in 2002. Of the 740 licenses available
for auction, 484 licenses were won by 102 winning bidders. Seventy-two of the winning bidders claimed
small business, very small business or entrepreneur status and won licenses.79 A second auction
commenced on May 28, 2003, closed on June 13, 2003, and included 256 licenses.80 Seventeen winning
bidders claimed small or very small business status, and nine winning bidders claimed entrepreneur


70 See "700 MHz Guard Bands Auction Closes: Winning Bidders Announced," Public Notice, 15 FCC Rcd 18026
(2000).
71 See "700 MHz Guard Bands Auction Closes: Winning Bidders Announced," Public Notice, 16 FCC Rcd 4590
(WTB 2001).
72 700 MHz Second Report and Order, 22 FCC Rcd 15289.
73 See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (WTB 2008).
74 See Reallocation and Service Rules for the 698746 MHz Spectrum Band (Television Channels 5259), Report
and Order
, 17 FCC Rcd 1022 (2002) ("Channels 5259 Report and Order").
75 See id., 17 FCC Rcd at 108788 172.
76 See id.
77 See id., 17 FCC Rcd at 1088 173.
78 See Alvarez Letter 1998.
79 See Lower 700 MHz Band Auction Closes, Public Notice, 17 FCC Rcd 17,272 (2002).
80 See Lower 700 MHz Band Auction Closes, Public Notice, 18 FCC Rcd 11,873 (2003).
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status.81 In 2005, the Commission completed an auction of 5 licenses in the Lower 700 MHz band. All
three winning bidders claimed small business status.
24.
In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700
MHz Second Report and Order.82 An auction of A, B and E block 700 MHz licenses was held in 2008.83
Twenty winning bidders claimed small business status (those with attributable average annual gross
revenues that exceed $15 million and do not exceed $40 million for the preceding three years). Thirty
three winning bidders claimed very small business status (those with attributable average annual gross
revenues that do not exceed $15 million for the preceding three years).
25.
Wireless Telephony. Wireless telephony includes cellular, personal communications
services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small
business size standard for Wireless Telecommunications Carriers (except Satellite).84 Under the SBA
small business size standard, a business is small if it has 1,500 or fewer employees.85 According to
Trends in Telephone Service data, 413 carriers reported that they were engaged in wireless telephony.86
Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees.87
Therefore, more than half of these entities can be considered small.
26.
Air-Ground Radiotelephone Service. The Commission has previously used the SBA's
small business definition applicable to Wireless Telecommunications Carriers (except Satellite), i.e., an
entity employing no more than 1,500 persons.88 There are approximately 100 licensees in the Air-Ground
Radiotelephone Service, and under that definition, we estimate that almost all of them qualify as small
entities under the SBA definition. For purposes of assigning Air-Ground Radiotelephone Service licenses
through competitive bidding, the Commission has defined "small business" as an entity that, together
with controlling interests and affiliates, has average annual gross revenues for the preceding three years
not exceeding $40 million.89 A "very small business" is defined as an entity that, together with
controlling interests and affiliates, has average annual gross revenues for the preceding three years not
exceeding $15 million.90 These definitions were approved by the SBA.91 In 2006, the Commission
completed an auction of nationwide commercial Air-Ground Radiotelephone Service licenses in the 800


81 See id.
82 700 MHz Second Report and Order, Second Report and Order, 22 FCC Rcd 15,289, 15,359 n.434 (2007).
83 See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (2008).
84 13 C.F.R. 121.201, NAICS code 517210.
85 Id.
86 TRENDS IN TELEPHONE SERVICE, tbl. 5.3.
87 Id.
88 13 C.F.R. 121.201, NAICS codes 517210.
89 Amendment of Part 22 of the Commission's Rules to Benefit the Consumers of Air-Ground Telecommunications
Services, Biennial Regulatory Review--Amendment of Parts 1, 22, and 90 of the Commission's Rules, Amendment
of Parts 1 and 22 of the Commission's Rules to Adopt Competitive Bidding Rules for Commercial and General
Aviation Air-Ground Radiotelephone Service, WT Docket Nos. 03-103, 05-42, Order on Reconsideration and
Report and Order
, 20 FCC Rcd 19663, 19677-83 28-42 (2005).
90 Id.
91 See Letter from Hector V. Barreto, Administrator, SBA, to Gary D. Michaels, Deputy Chief, Auctions and
Spectrum Access Division, Wireless Telecommunications Bureau, FCC (filed Sept. 19, 2005).
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MHz band (Auction 65). Later in 2006, the auction closed with two winning bidders winning two Air-
Ground Radiotelephone Services licenses. Neither of the winning bidders claimed small business status.
27.
Aviation and Marine Radio Services. Small businesses in the aviation and marine radio
services use a very high frequency (VHF) marine or aircraft radio and, as appropriate, an emergency
position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has
not developed a small business size standard specifically applicable to these small businesses. For
purposes of this analysis, the Commission uses the SBA small business size standard for the category
Wireless Telecommunications Carriers (except satellite)," which is 1,500 or fewer employees.92 Census
data for 2007, which supersede data contained in the 2002 Census, show that there were 1,383 firms that
operated that year.93 Of those 1,383, 1,368 had fewer than 100 employees, and 15 firms had more than
100 employees. Thus under this category and the associated small business size standard, the majority of
firms can be considered small. Additionally, the Commission notes that most applicants for recreational
licenses in this category of wireless service are individuals. Approximately 581,000 ship station licensees
and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage
requirements of any statute or treaty. For purposes of our evaluations in this analysis, the Commission
estimates that there are up to approximately 712,000 licensees that are small businesses (or individuals)
under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the
Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship
transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the
Commission defined a "small" business as an entity that, together with controlling interests and affiliates,
has average gross revenues for the preceding three years not to exceed $15 million dollars. In addition, a
"very small" business is one that, together with controlling interests and affiliates, has average gross
revenues for the preceding three years not to exceed $3 million dollars.94 There are approximately 10,672
licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as
"small" businesses under the above special small business size standards.
28.
Fixed Microwave Services. Microwave services include common carrier,95 private-
operational fixed,96 and broadcast auxiliary radio services.97 They also include the Local Multipoint
Distribution Service (LMDS),98 the Digital Electronic Message Service (DEMS),99 and the 24 GHz


92 13 C.F.R. 121.201, NAICS code 517210.
93 U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 2009),
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&;-
ds_name=EC0751SSSZ5&-_lang=en.
94 Amendment of the Commission's Rules Concerning Maritime Communications, PR Docket No. 92-257, Third
Report and Order and Memorandum Opinion and Order, 13 FCC Rcd 19853 (1998).
95 See 47 C.F.R. Part 101, Subparts C and I.
96 See 47 C.F.R. Part 101, Subparts C and H.
97 Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission's Rules. See 47 C.F.R. Part
74. Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliary
microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between
two points such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which relay
signals from a remote location back to the studio.
98 See 47 C.F.R. Part 101, Subpart L.
99 See 47 C.F.R. Part 101, Subpart G.
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Service,100 where licensees can choose between common carrier and non-common carrier status.101 The
Commission has not yet defined a small business with respect to microwave services. For purposes of the
IRFA, the Commission will use the SBA's definition applicable to Wireless Telecommunications Carriers
(except satellite)--i.e., an entity with no more than 1,500 persons is considered small.102 For the category
of Wireless Telecommunications Carriers (except Satellite), Census data for 2007, which supersede data
contained in the 2002 Census, show that there were 1,383 firms that operated that year.103 Of those 1,383,
1,368 had fewer than 100 employees, and 15 firms had more than 100 employees. Thus under this
category and the associated small business size standard, the majority of firms can be considered small.
The Commission notes that the number of firms does not necessarily track the number of licensees. The
Commission estimates that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary
licensees) would qualify as small entities under the SBA definition.
29. Local Multipoint Distribution Service. Local Multipoint Distribution Service (LMDS) is a
fixed broadband point-to-multipoint microwave service that provides for two-way video
telecommunications.104 In the 1998 and 1999 LMDS auctions,105 the Commission defined a small
business as an entity that has annual average gross revenues of less than $40 million in the previous three
calendar years.106 Moreover, the Commission added an additional classification for a "very small
business," which was defined as an entity that had annual average gross revenues of less than $15 million
in the previous three calendar years.107 These definitions of "small business" and "very small business" in
the context of the LMDS auctions have been approved by the SBA.108 In the first LMDS auction, 104
bidders won 864 licenses. Of the 104 auction winners, 93 claimed status as small or very small
businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based on this information, the
Commission believes that the number of small LMDS licenses will include the 93 winning bidders in the
first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers
as defined by the SBA and the Commission's auction rules.
30.
Offshore Radiotelephone Service. This service operates on several UHF television
broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the


100 See id.
101 See 47 C.F.R. 101.533, 101.1017.
102 13 C.F.R. 121.201, NAICS code 517210.
103 U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 2009),
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&;-
ds_name=EC0751SSSZ5&-_lang=en.
104 See Local Multipoint Distribution Service, Second Report and Order, 12 FCC Rcd 12545 (1997).
105 The Commission has held two LMDS auctions: Auction 17 and Auction 23. Auction No. 17, the first LMDS
auction, began on February 18, 1998, and closed on March 25, 1998. (104 bidders won 864 licenses.) Auction No.
23, the LMDS re-auction, began on April 27, 1999, and closed on May 12, 1999. (40 bidders won 161 licenses.)
106 See LMDS Order, 12 FCC Rcd at 12545.
107 Id.
108 See Letter to Daniel Phythyon, Chief, Wireless Telecommunications Bureau (FCC) from A. Alvarez,
Administrator, SBA (January 6, 1998).
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Gulf of Mexico.109 There are presently approximately 55 licensees in this service. The Commission is
unable to estimate at this time the number of licensees that would qualify as small under the SBA's small
business size standard for the category of Wireless Telecommunications Carriers (except Satellite).
Under that standard.110 Under that SBA small business size standard, a business is small if it has 1,500 or
fewer employees.111 Census data for 2007, which supersede data contained in the 2002 Census, show
that there were 1,383 firms that operated that year.112 Of those 1,383, 1,368 had fewer than 100
employees, and 15 firms had more than 100 employees. Thus under this category and the associated
small business size standard, the majority of firms can be considered small.
31.
39 GHz Service. The Commission created a special small business size standard for 39
GHz licenses an entity that has average gross revenues of $40 million or less in the three previous
calendar years.113 An additional size standard for "very small business" is: an entity that, together with
affiliates, has average gross revenues of not more than $15 million for the preceding three calendar
years.114 The SBA has approved these small business size standards.115 The auction of the 2,173 39 GHz
licenses began and closed in 2000. The 18 bidders who claimed small business status won 849 licenses.
32.
218-219 MHz Service. The first auction of 218-219 MHz spectrum resulted in 170
entities winning licenses for 594 Metropolitan Statistical Area (MSA) licenses. Of the 594 licenses, 557
were won by entities qualifying as a small business. For that auction, the small business size standard
was an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal
income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year
for the previous two years.116 In the 218-219 MHz Report and Order and Memorandum Opinion and
Order, the Commission established a small business size standard for a "small business" as an entity that,
together with its affiliates and persons or entities that hold interests in such an entity and their affiliates,
has average annual gross revenues not to exceed $15 million for the preceding three years.117 A "very
small business" is defined as an entity that, together with its affiliates and persons or entities that hold
interests in such an entity and its affiliates, has average annual gross revenues not to exceed $3 million for
the preceding three years.118 The SBA has approved of these definitions.119 These size standards will be


109 This service is governed by Subpart I of Part 22 of the Commission's Rules. See 47 C.F.R. 22.1001-22.1037.
110 13 C.F.R. 121.201, NAICS code 517210.
111 Id.
112 U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 2009),
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&;-
ds_name=EC0751SSSZ5&-_lang=en.
113 See Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands, ET Docket
No. 95-183, Report and Order, 63 Fed. Reg. 6079 (Feb. 6, 1998).
114 Id.
115 See Letter to Kathleen O'Brien Ham, Chief, Auctions and Industry Analysis Division, Wireless
Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA (Feb. 4, 1998).
116 Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No. 93-253,
Fourth Report and Order, 9 FCC Rcd 2330 (1994).
117 Amendment of Part 95 of the Commission's Rules to Provide Regulatory Flexibility in the 218-219 MHz Service,
WT Docket No. 98-169, Report and Order and Memorandum Opinion and Order, 15 FCC Rcd 1497 (1999).
118 Id.
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used in future auctions of 218-219 MHz spectrum.
33.
Incumbent 24 GHz Licensees. This analysis may affect incumbent licensees who were
relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the
24 GHz band. For this service, the Commission uses the SBA small business size standard for the
category "Wireless Telecommunications Carriers (except satellite)," which is 1,500 or fewer
employees.120 To gauge small business prevalence for these cable services we must, however, use the
most current census data. Census data for 2007, which supersede data contained in the 2002 Census, show
that there were 1,383 firms that operated that year.121 Of those 1,383, 1,368 had fewer than 100
employees, and 15 firms had more than 100 employees. Thus under this category and the associated
small business size standard, the majority of firms can be considered small. The Commission notes that
the Census' use of the classifications "firms" does not track the number of "licenses". The Commission
believes that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band,
Teligent122 and TRW, Inc. It is our understanding that Teligent and its related companies have less than
1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one
incumbent licensee in the 24 GHz band is a small business entity.
34.
Future 24 GHz Licensees. With respect to new applicants in the 24 GHz band, the small
business size standard for "small business" is an entity that, together with controlling interests and
affiliates, has average annual gross revenues for the three preceding years not in excess of $15 million.123
"Very small business" in the 24 GHz band is an entity that, together with controlling interests and
affiliates, has average gross revenues not exceeding $3 million for the preceding three years.124 The SBA
has approved these small business size standards.125 These size standards will apply to the future auction,
if held.
35.
16701675 MHz Services. This service can be used for fixed and mobile uses, except
aeronautical mobile.126 An auction for one license in the 16701675 MHz band was conducted in 2003.
The winning bidder was not a small entity.
36.
3650-3700 MHz Band. In March 2005, the Commission released a Report and Order and
(Continued from previous page)


119 See Alvarez to Phythyon Letter 1998.
120 13 C.F.R. 121.201, NAICS code 517210.
121 U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 2009),
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&;-
ds_name=EC0751SSSZ5&-_lang=en.
122 Teligent acquired the DEMS licenses of FirstMark, the only licensee other than TRW in the 24 GHz band whose
license has been modified to require relocation to the 24 GHz band.
123 Amendments to Parts 1, 2, 87 and 101 of the Commission's Rules to License Fixed Services at 24 GHz, WT
Docket No. 99-327, Report and Order, 15 FCC Rcd 16934, 16967 at para. 77 (2000); see also 47 C.F.R.
101.538(a)(2).
124 Amendments to Parts 1, 2, 87 and 101 of the Commission's Rules to License Fixed Services at 24 GHz, WT
Docket No. 99-327, Report and Order, 15 FCC Rcd 16934, 16967 at para. 77 (2000); see also 47 C.F.R.
101.538(a)(1).
125 See Letter to Margaret W. Wiener, Deputy Chief, Auctions and Industry Analysis Division, Wireless
Telecommunications Bureau, FCC, from Gary M. Jackson, Assistant Administrator, SBA (July 28, 2000).
126 47 C.F.R. 2.106; see generally 47 C.F.R. 27.1.70.
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Memorandum Opinion and Order that provides for nationwide, non-exclusive licensing of terrestrial
operations, utilizing contention-based technologies, in the 3650 MHz band (i.e., 36503700 MHz).127 As
of April 2010, more than 1270 licenses have been granted and more than 7433 sites have been registered.
The Commission has not developed a definition of small entities applicable to 36503700 MHz band
nationwide, non-exclusive licensees. However, we estimate that the majority of these licensees are
Internet Access Service Providers (ISPs) and that most of those licensees are small businesses.
37.
Internet Service Providers. The 2007 Economic Census places these firms, whose
services might include voice over Internet protocol (VoIP), in either of two categories, depending on
whether the service is provided over the provider's own telecommunications facilities (e.g., cable and
DSL ISPs), or over client-supplied telecommunications connections (e.g., dial-up ISPs). The former are
within the category of Wired Telecommunications Carriers,128 which has an SBA small business size
standard of 1,500 or fewer employees.129 These are also labeled "broadband." The latter are within the
category of All Other Telecommunications,130 which has a size standard of annual receipts of $25 million
or less.131 These are labeled non-broadband.
38.
The most current Economic Census data for all such firms are 2007 data, which are
detailed specifically for ISPs within the categories above. For the first category, the data show that 396
firms operated for the entire year, of which 159 had nine or fewer employees.132 For the second category,
the data show that 1,682 firms operated for the entire year. 133 Of those, 1,675 had annual receipts below
$25 million per year, and an additional two had receipts of between $25 million and $ 49,999,999.
Consequently, we estimate that the majority of ISP firms are small entities.
39.
Satellite Telecommunications Providers. Two economic census categories address the
satellite industry. The first category has a small business size standard of $15 million or less in average
annual receipts, under SBA rules.134 The second has a size standard of $25 million or less in annual
receipts.135
40.
The category of Satellite Telecommunications "comprises establishments primarily


127 The service is defined in section 90.1301 et seq. of the Commission's Rules, 47 C.F.R. 90.1301 et seq.
128 U.S. Census Bureau, 2007 NAICS Definitions, "517110 Wired Telecommunications Carriers";
http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
129 13 C.F.R. 121.201, NAICS code 517110.
130 U.S. Census Bureau, 2007 NAICS Definitions, "517919 All Other Telecommunications";
http://www.census.gov/naics/2007/def/ND517919.HTM#N517919.
131 13 C.F.R. 121.201, NAICS code 517919 (updated for inflation in 2008).
132 U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, "Establishment and Firm Size,"
NAICS code 5171103 (released Nov. 19, 2010) (employment size). The data show only two categories within the
whole: the categories for 1-4 employees and for 5-9 employees.
133 U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, "Establishment and Firm Size,"
NAICS code 5179191 (released Nov. 19, 2010) (receipts size).
134 13 C.F.R. 121.201, NAICS code 517410.
135 13 C.F.R. 121.201, NAICS code 517919.
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engaged in providing telecommunications services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications signals via a system of satellites or
reselling satellite telecommunications."136 Census Bureau data for 2007 show that 512 Satellite
Telecommunications firms that operated for that entire year.137 Of this total, 464 firms had annual
receipts of under $10 million, and 18 firms had receipts of $10 million to $24,999,999.138 Consequently,
the Commission estimates that the majority of Satellite Telecommunications firms are small entities that
might be affected by our action.
41.
The second category, i.e. "All Other Telecommunications" comprises "establishments
primarily engaged in providing specialized telecommunications services, such as satellite tracking,
communications telemetry, and radar station operation. This industry also includes establishments
primarily engaged in providing satellite terminal stations and associated facilities connected with one or
more terrestrial systems and capable of transmitting telecommunications to, and receiving
telecommunications from, satellite systems. Establishments providing Internet services or voice over
Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in
this industry."139 For this category, Census Bureau data for 2007 show that there were a total of 2,383
firms that operated for the entire year.140 Of this total, 2,347 firms had annual receipts of under $25
million and 12 firms had annual receipts of $25 million to $49, 999,999.141 Consequently, the
Commission estimates that the majority of All Other Telecommunications firms are small entities that
might be affected by our action.
42.
Part 15 Device Manufacturers. The Commission has not developed a definition of small
applicable to unlicensed communications devices manufacturers. Therefore we will utilize the SBA
definition applicable to Radio and Television Broadcasting and Wireless Communications Equipment
Manufacturing. The Census Bureau defines this category as follows: This industry comprises
establishments primarily engaged in manufacturing radio and television broadcast and wireless
equipment. Examples of products made by these establishments are: transmitting and receiving antennas,
cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment,
and radio and television studio and broadcasting equipment".142 The SBA has developed a small business
size standard for Radio an Television Broadcasting and Wireless Communications Equipment


136 U.S. Census Bureau, 2007 NAICS Definitions, "517410 Satellite Telecommunications," .
137 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&;-
ds_name=EC0751SSSZ4&-_lang=en.
138 . http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&;-
_lang=en
139 http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search
140 U.S. Censhttp://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&;-
ds_name=EC0751SSSZ4&-_lang=en.
141http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&;-
_lang=en .
142 http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=334220&search=2007%20NAICS%20Search
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Manufacturing, which is all firms having 750 or fewer employees.143 The U.S. Census data for 2007
indicate that in that year there were 939 active establishments, of which 912 had less than 500 hundred
employees and of which 27 had 500 employees or more.144 Accordingly, the Commission concludes that
the majority of businesses in this category were small.
43.
Telephone Apparatus Manufacturing. This industry comprises establishments primarily
engaged in manufacturing wire telephone and data communications equipment. These products may be
standalone or board-level components of a larger system. Examples of products made by these
establishments are central office switching equipment, cordless telephones (except cellular), PBX
equipment, telephones, telephone answering machines, LAN modems, multi-user modems, and other data
communications equipment, such as bridges, routers, and gateways. 145 The SBA has developed a small
business size standard for Telephone Apparatus Manufacturing, which is all such firms having fewer than
1000 employees.146 U.S. Census data for 2007 indicate that there were 398 establishments that were
operational during that year. Of that 398, 393 had less than 100 employees and 5 had 1000 employees or
more. 147 Accordingly, the Commission concludes that the majority of businesses in this category were
small.
44.
Other Communications Equipment Manufacturing. This industry comprises
establishments primarily engaged in manufacturing communications equipment (except telephone
apparatus, and radio and television broadcast, and wireless communications equipment).148 The SBA has
developed a small business size standard for Other Communications Equipment Manufacturing, which is
all such firms having fewer than 750 employees.149 U.S. Census data for 2007 indicate that there were 452
establishments that were operational in this category of manufacturing during that year. Of that 452, 452
had fewer than 1000 employees. None had more than 100 employees.150 Accordingly, the Commission
concludes that all of the businesses in this category were small.

D.

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

45.
The compliance requirement is that facilities-based providers of commercial mobile data


143 NAICS Code 334220, 13 C.F.R. 121.201( Effective August 8, 2008 to November 4, 2011)
144 http://factfinder.census.gov/servlet/IBQTable?_bm=y&-ds_name=EC0731SG3&;-
ib_type=NAICS2007&-NAICS2007=334220
145 http://www.census.gov/cgi-bin/sssd/naics/naicsrch
146 NAICS CODE 334210, 13 CR 121.201( Effective August 8, 2008 to November 4, 2011)
147 http://factfinder.census.gov/servlet/IBQTable?_bm=y&-ds_name=EC0731SG3&-ib_type=NAICS2007&;-
NAICS2007=334210
148 http://www.census.gov/naics/2007/def/ND334290.HTM
149 NAICS CODE 334290, 13 CR 121.201( Effective August 8, 2008 to November 4, 2011)
150 http://factfinder.census.gov/servlet/IBQTable?_bm=y&-ds_name=EC0731SG3&-ib_type=NAICS2007&;-
NAICS2007=334290
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services are required to offer data roaming arrangements to other such providers on commercially
reasonable terms and conditions.

E.

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

46.
The RFA requires an agency to describe any significant alternatives that it has considered
in developing its 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.151
47.
The adoption of a data roaming rule will benefit small providers in many ways. The
record in this proceeding shows that, among other things, many small providers have had difficulty
negotiating data roaming agreements with nationwide providers on commercially reasonable terms. The
data roaming rule will benefit small providers by helping them to maintain their ability to compete with
the major national providers, and ensuring that consumers of such small providers have access to data
services when they travel outside of their provider's network coverage. Additionally, the data roaming
will help to encourage investment by ensuring that small providers wanting to invest in their networks or
expand their coverage into new areas can offer subscribers a competitive level of coverage during the
early period of investment and buildout.
48.
With respect to data roaming disputes, the Commission establishes a complaint process
similar to the complaint process available under the current roaming obligations for interconnected voice
and data services. Under the dispute resolution procedures established, providers, including small
providers, may file a complaint or file a petition for declaratory ruling to resolve any disputes arising out
of the data roaming rule adopted. Additionally, although all data roaming complaints will not
automatically be placed on the Accelerated Docket, an affected small provider can seek consideration of
its complaint under the Commission's Accelerated Docket rules and procedures where appropriate.
Furthermore, during ongoing negotiations for data roaming, parties (including small providers) can seek
Commission dispute resolution for claims such as, for example, those regarding the commercial
reasonableness of the negotiations, providers' conduct, and the terms and conditions of the proffered data
roaming arrangement. With respect to claims regarding the commercial reasonableness of the proffered
terms and conditions, including prices, the Commission staff may, in resolving such claims, require both
parties to provide to the Commission their best and final offers (final offers). This dispute resolution
mechanism offers small providers an avenue to have disputes resolved in the event the parties are not able
to agree on terms.
49.
In light of the benefits described above that small providers will likely receive as a result
of the adoption of the data roaming rule, and the extensive and uniform record support from small
providers for a data roaming rule consistent with the Commission's approach, the Commission does not
address any significant alternatives considered in developing that approach.

F.

Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules

50.
None.


151 See 5 U.S.C. 603(c).
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STATEMENT OF

CHAIRMAN JULIUS GENACHOWSKI

Re:

Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and
Other Providers of Mobile Data Services
, WT Docket No. 05-265


Roaming obligations have helped fuel competition, investment and consumer choice in America's
wireless marketplace since the first cellular voice service in 1981. Today, we take a vital step to update
this framework for the 21st century, as Americans increasingly use their mobile devices for data as well
as voice.
The framework we adopt today will spur investment in mobile broadband and promote
competition. It will ensure that rural and urban consumers have the ability they expect to use their mobile
phones throughout the nation for voice calls or data--like email or mobile apps.
The rules we adopt today build on the Commission's longstanding and bipartisan voice roaming
rules. As noted, the Commission first adopted roaming requirements in 1981 as part of the original
cellular service rules. In 1996, the Commission extended these rules to the newly established Personal
Communications Services and to certain Specialized Mobile Radio carriers. In 2007, under Republican
Chairman Kevin Martin, the Commission unanimously clarified that carriers were required to provide
"automatic" voice roaming. And last year, this Commission voted unanimously to increase consumers'
access to roaming services by eliminating the so-called "home roaming exclusion."
And the record on voice roaming is one of unbridled success. Today, there are more than 300
million mobile voice subscribers and virtually every consumer has access to nationwide voice services
and roaming.
And so I am pleased that Congressional members of both parties as well as an overwhelming
percentage of businesses in the industry -- have supported the simple, logical step of extending the basic
roaming framework to mobile broadband.
Stemming from our focus on facts, data and the realities of technology and the marketplace, we
today adopt an even lighter touch approach to reflect the swiftly evolving reality of today's data market.
This approach has benefitted from input from all of my colleagues, including my colleagues who have
decided not to support the item.
By adopting a "commercially reasonable" standard for data roaming offers, we give carriers
flexibility to tailor agreements to different environments and to account for concerns regarding congestion
and technical compatibility. We've also refined enforcement of the rules with an innovative process
designed to drive deals in the market place and minimize the need for Commission involvement.
The Commission has the option of invoking a process similar to "baseball" style arbitration that
should provide further incentive for the parties to reach agreement before ever filing a complaint with the
Commission. And we have avoided, as we did unanimously in the voice roaming context, regulating
rates for data roaming agreements, instead leaving it to the parties to set their terms.
Notwithstanding the enormous success of our voice roaming rules and the powerful logic of
updating those rules to reflect advances in technology, some have objected that today's Order is
unnecessary and may inhibit investment. The record is clearly to the contrary on both points.
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First, the record demonstrates that there is, in fact, a significant problem. The evidence shows
that mobile providers must be able to offer nationwide voice and data plans to have any chance of
competing in today's market. Consumers have come to expect the ability to roam nationwide, and they
demand it for all of their basic mobile services, whether it's a voice call, an email, an online check of out-
of-town scores, or access to web job postings or health information while on the road.
Yet the record evidence supplied by carriers in the market shows that roaming deals simply are
not being widely offered on commercially reasonable terms. On the contrary, the record makes clear that
some providers have refused to negotiate 3G or 4G data roaming agreements, have created long delays, or
have taken other steps to impede competition.
A broad coalition of rural carriers informed us that their attempts to enter into data roaming
negotiations with nationwide providers are "many times rejected out of hand." One company reported
that "even our requests for an assurance to negotiate at some point in the future have been refused." In
short, in the absence of the basic framework that we have on the books for voice roaming, too many
competitive carriers have been unable to get deals done.
As for the issue of investment, the record demonstrates that data roaming guarantees will help
unleash significant broadband investment, especially in rural areas. Today, smaller and rural providers
have said they can't raise the money to build out networks--or if they have the capital, can't make the
economic case to move forward without certainty and predictability around roaming. One company told
us that it has sidelined "several hundred million dollars in capital expenditures, new jobs, investments in
intellectual property, and other economic activity" because in order to enter the wireless market, it needs
the assurance of reasonable access to data roaming.
New investment in broadband will increase competition, accelerate broadband build out, and
benefit both consumers and the nation's global competitiveness. In contrast, the absence of data roaming
guarantees will limit our broadband future by eliminating choices, especially in rural areas, or in some
cases delaying or preventing access to mobile broadband at all.
Indeed, every commenter that filed in this record, other than the two largest nationwide
incumbents, asked the Commission to adopt data roaming rules. From both a policy and legal
perspective, standing idle in the face of this record would amount to shirking our responsibility.
It's untenable to argue that the Commission lacks the authority to adopt data roaming rules--
specifically that our framework amounts to "common carriage" prohibited by the statute. This argument
is flat wrong: the framework we adopt leaves mobile service providers free to negotiate and determine, on
an individualized case-by-case basis, the commercially reasonable terms of data roaming agreements.
Under the law, this is the very opposite of common carriage.
Very often when we act here at the Commission, someone says we've exceeded our authority.
But the truth is that these claims of overreaching are themselves an overreach. During the last four years,
the federal courts have issued 16 published merits decisions addressing direct statutory challenges to FCC
orders. The FCC prevailed in 15 of the 16 challenges--94% of the time. I am confident that the same
result will pertain here, if this order is challenged.
The notion that sometimes to promote competition and broadband deployment the
Commission must adopt sensible, light-touch rules to enable access to infrastructure is a familiar one.
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The Commission has done so not only earlier this year and in past years with voice roaming, it did so
earlier today with pole attachments. This is why both of these initiatives have bipartisan Congressional
support. Broadband data roaming rules for rural and other competitive carriers are no less worthy of
unanimous support than pole attachment rules for incumbent and competitive carriers.
Together, these actions on pole attachments and data roaming both recommendations of the
National Broadband Plan mark a significant step to promote a vibrant and innovative broadband future,
massive private investment, and our global competiveness.
We know that a vigorous and dynamic mobile data market is vital if America is to remain a
global technology leader. Healthy competition is what drives greater innovation and investment, lower
prices, and better service. So I am pleased that we are moving forward with this basic competition and
consumer-protecting measure for America's mobile broadband future.
I thank the Bureaus and Offices, particularly the Wireless Telecommunications Bureau, the
Office of Strategic Planning and Policy Analysis and the Office of the General Counsel, for their work on
this order.
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STATEMENT OF

COMMISSIONER MICHAEL J. COPPS

Re:

Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and
Other Providers of Mobile Data Services
, WT Docket No. 05-265


Today's action on data roaming advances two key goals of mine and of the Commission's--
protecting wireless consumers and promoting sorely-needed competition in the wireless market.
Consumer demand for mobile connectivity grows stronger by the day. That demand is not limited to
voice service, and neither should be the requirement to offer roaming on reasonable terms. These
safeguards ensure that small regional carriers can hope to compete in the wireless market-place while
investing in their own build-out of facilities. It means that their subscribers can have comparable
flexibility to move about the country as customers of the wireless behemoths.
Our regulations must always try to keep pace with the changing technology and market
environments. In our new digital world, few consumers buy a mobile handset exclusively for voice
telephony services. Americans in every corner of the land rely on their smartphones to stay connected
through e-mail, social media and other applications--whether for business reasons or for communicating
with family and friends. What good is that smartphone if it can't be used when a subscriber is roaming
across the county or across the country? Our regulations must reflect today's reality and not make
artificial distinctions between voice and data telecommunications.
I commend the Chairman for bringing this proceeding to resolution. And of course, I thank the
staff of the Wireless Telecommunications Bureau for their tireless work on the item. I would have
supported an item that gave carriers the right to negotiate roaming arrangements at "just and reasonable"
rates as opposed to the "commercially reasonable" standard we adopt here. I am confident, however, that
vigorous application of today's Order can and should lead to much the same result--ensuring that
consumers, no matter where they live or what carrier they choose, can use mobile technology to the
fullest extent possible.
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DISSENTING STATEMENT OF

COMMISSIONER ROBERT M. McDOWELL

Re:

Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and
Other Providers of Mobile Data Services, WT Docket No. 05-265.


My colleagues and I agree that America's consumers expect that their mobile data services of
today and tomorrow will work seamlessly wherever they go. Certainly it is important that all consumers,
no matter where they live, work or travel, have the ability to benefit from the most advanced wireless
services in a competitive market. I recognize and appreciate the complicated policy, legal and economic
factors involved with the data roaming issue. I am grateful to the many proponents of today's rules for
sharing their important insights and marketplace experiences with me. And, I also thank the Chairman for
his diplomacy and graciousness in attempting to forge, in his view, a streamlined order that I know is
motivated by the best of intentions. I am also grateful for the efforts of those companies that are
continuing to reach roaming agreements, including for data services. The record reflects that numerous
carriers seeking regulatory relief today have, in fact, struck many new deals.
I also agree with my colleagues that many benefits flow from the widespread availability of data
roaming. Nonetheless, the Commission simply does not have the legal authority to adopt the regulatory
regime mandated by this order. Accordingly, I regret that I cannot vote to approve today's order.
Even though the order attempts to explain otherwise, in mandating the provision of data roaming
and establishing a means for dispute resolution that includes adjudicating terms and rates, my colleagues
in the majority are, in essence, imposing a Title II common carrier regulatory regime in violation of Title
III of the Communications Act and contrary to Commission precedent.
The effort to justify characterization of today's action as something other than a common carriage
decision is understandable, for the law compels it. The problem, however, is that data roaming is what
the law sees as a "private mobile service." In other words, the service is considered a "mobile service"
under the Act, but not a "commercial mobile service or the functional equivalent of a commercial mobile
service."1 Because data roaming is not a commercial mobile service, Section 332(c)(2) of the Act
prohibits the Commission from subjecting the provision of data roaming to common carrier regulation.2
Under this rubric, the Commission in 2007 unanimously concluded that provision of wireless broadband
Internet access service is an "information service" and that data roaming service must be "free from
common carrier regulation."3
In establishing new regulations for roaming arrangements among commercial mobile data service
providers, today's order goes to great lengths to argue that authority is pursuant to, and consistent with,
Title III of the Communications Act. New rule Section 20.12(e)(1) states that a facilities-based provider
of commercial mobile data services is required to offer roaming arrangements on "commercially
reasonable" terms and conditions. The rule also provides that service providers will have discretion to


1 47 U.S.C. 153(33), 332(d)(3).
2 47 U.S.C. 332(c)(2).
3 Appropriate Regulatory Treatment of Broadband Access to the Internet Over Wireless Networks, Declaratory
Ruling, 22 FCC Rcd 5901, 5921 54 (2007).
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negotiate on an individualized basis and may reasonably choose not to offer roaming arrangements in
certain circumstances. The text of the order concludes that these mandates do not constitute common
carriage because they do not employ Title II terminology explicitly. In other words, the order justifies its
mandate by claiming that the new rules do not constitute common carriage because they do not employ
the terms "just and reasonable" and "not unreasonably discriminatory," as found in Sections 201 and
202.4
What is perhaps even more difficult to reconcile with the pattern and structure of the Act,
however, is the new rule that invites data roaming complaints through the Commission's formal and
informal complaint procedures as set forth in Part 1 of the Commission's rules. The text states that, for
the purpose of new Section 20.12(e), references to a "carrier" or "common carrier," as set forth in Part 1,
will mean "a provider of commercial mobile data services" even though the order disclaims elsewhere
any intent to turn these providers into common carriers. And the order expressly acknowledges that this
adjudication procedure will involve Commission decisions on rates and terms.
The majority's efforts to legally justify the new regulations, no matter how well meaning, cannot
survive dispassionate analysis. This decision embodies the hallmarks of classic common carriage: The
regime compels the provision of service and restricts the discretion of providers to determine to whom
and on what rates and terms to provide it. Indeed, the new rules constitute common carrier regulation
by their very existence in mandating the provision of a mere information service. Thus, when
considered in their totality, these new mandates plainly do violate the Act and Commission precedent.
We cannot evade the law by upending years of legal precedent and congressional intent to recast and
redefine the meaning of common carriage.
Moreover, in crafting a new rule for complaints by bootstrapping on to the complaint procedures
that pertain to common carriers, the majority eliminates all of the commercial flexibility granted to the
providers. That the new rules allegedly permit providers to negotiate commercially reasonable terms and
to offer different terms to different parties does not change the common carrier nature of these
regulations. After all, this new standard and process must, by their very terms, involve the Commission
in setting rates, and, by extension, terms and conditions and to do so with reference to similarly situated
common carriers. As a practical and legal matter, how else would "commercial reasonableness" be
determined?
No matter how noble a policy goal may be, we have a steadfast obligation to respect the
boundaries established by Congress through our authorizing statute. Appellate courts frequently remind
us of this legal duty.5 The new regulations adopted today are in direct conflict with the Act and
Commission precedent. Therefore, I respectfully dissent.
In the meantime, I will continue to strongly encourage carriers to continue to enter into roaming
agreements. I am confident that, as the 700 MHz band is built out, there will be new incentives to reach
agreement, especially for agreements involving LTE technology. These market developments will surely
foster new incentives for mutually beneficial roaming relationships.


4 See 47 U.S.C. 201-202.
5 See, e.g., Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010).
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STATEMENT OF

COMMISSIONER MIGNON L. CLYBURN

Re:

Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and
Other Providers of Mobile Data Services, WT Docket No. 05-265.


In Section 706 of the 1996 Telecommunications Act, Congress directed the Commission to
encourage the deployment of advanced communications services to all Americans by using measures that
promote competition in local markets. Last year, the Fourteenth Mobile Services Report estimated that
more than 10 million Americans still live in rural census blocks with two or fewer mobile service
providers. The Report also explained that roaming is a critical component of the structure of the mobile
services market because it permits competitors to enter hard to serve areas. With today's Data Roaming
Order, the Commission takes an important step to ensure that the structure of the mobile data services
market advances Section 706's goals and improves the ability of carriers to offer more rural Americans
the competitive choices other Americans enjoy.
This Order also safeguards consumers' reasonable expectations in mobile wireless
communications, wherever they travel in the country, or however they choose to communicate. In the
early history of the wireless market, consumers expected seamless service in mobile voice and text
services. Trends suggest that this expectation will extend to the most advanced IP-based broadband
services. In 2008, 25 million Americans subscribed to mobile broadband service. That number is now
over 70 million. Between 2008 and 2009, the percentage of smart phones that accounted for the number
of handsets sold, rose from 27 to 44 percent. Over the past few years, the percentage of Americans, who
solely rely on mobile services for their communications needs, has risen to over 25 percent.
To be sure, this growing demand for seamless mobile broadband services is due to investment
and innovation in networks, handsets, and applications. But it is also due to wireless companies spending
millions, and in some cases billions, on marketing campaigns to persuade consumers why they offer more
advanced services over larger geographic areas of the country than their competitors. Wireless carriers
have now shifted the focus of their marketing campaigns from voice quality to 3G and 4G network
quality, coverage, and reliability.
One thing we do not hear these marketing campaigns mention however, is that roaming is an
important reason why companies can even boast of offering nationwide coverage. No single wireless
carrier has built out its entire licensed service area. Therefore, to fill gaps in their coverage, all carriers
must potentially roam on networks that other, non-affiliated, companies built.
Some argue that the prevalence of roaming agreements for 2G services means a roaming
requirement is not necessary for mobile broadband services. I disagree. Some of the opponents to this
Order are companies, who over the past few years, have merged with several of their roaming partners.
Those mergers mean the number of potential roaming partners for their competitors has dropped. The
fact that these merged companies oppose a mobile broadband service roaming rule suggests to me that
they might use their increased market power to unreasonably restrict consumer access to competitive
alternatives. In fact, as the Order points out, a number of these companies resisted offering 3G mobile
broadband roaming agreements to their competitors until just recently. That strategy may serve their
companies' interests. But when an increasing number of Americans are choosing to rely solely on mobile
service for their communication needs, and demanding more smart phones with mobile broadband
service, these roaming restrictions do not serve the public interest.
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Austin Schlick, Ruth Milkman, and their staffs, have done an excellent job explaining why the
Commission has statutory authority under Title III, as well as Section 706, to impose roaming obligations
on commercial mobile data services. As the item explains, the Commission will continue to monitor
roaming in the mobile wireless market. If we continue to find problems, we may have to consider
additional measures.
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DISSENTING STATEMENT OF

COMMISSIONER MEREDITH ATTWELL BAKER

Re:

Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and
Other Providers of Mobile Data Services
, WT Docket No. 05-265


I understand the importance of data roaming; but, I cannot support this Order for a fundamental
reason: in imposing these data roaming obligations on mobile broadband services, we exceed our
authority and impose rules of common carriage that are impermissible under our statute. Section
332(c)(2) of the Communications Act states in no uncertain terms that "a private mobile service [like data
roaming] shall not . . . be treated as a common carrier for any purpose under this Act."1
This treatment differs fundamentally from voice roaming services that are commercial mobile
services long subject to Title II common carrier obligations. Thus, the imposition of the common carrier
requirements of sections 201 and 202 on voice roaming negotiations elicited not a single dissenting
statement from the Commission-- neither in 2007, nor in 2010 when we revisited voice roaming.2 Yet
here, we seek to extend those same types of requirements from voice to data under a very different legal
analysis because of the clear statutory limits on this agency.
The Order, and much of the rhetoric that has developed around it, distinguishes data from voice
roaming on a carrier's ability to negotiate individualized agreements. There is, however, no distinction
here between voice and data roaming. That a deal is individually negotiated is not dispositive as to
whether or not it is a common carrier offering. This fact is most clearly demonstrated by our prior
findings that voice roaming is a common carrier offering although voice roaming deals are currently
individually negotiated under common carriage rules.3 Indeed, the fact that voice roaming agreements are


1 47 U.S.C. 332(c)(2) (2006). Congress defined "private mobile service" as "any mobile service . . . that is not a
commercial mobile service or the functional equivalent." Id. 332(d)(3) (emphasis added). Section 332(d)(1)
clearly establishes commercial mobile service as "any mobile service" that is provided for profit and makes service
interconnected with the public switched network available. Id. 332(d)(1), (d)(2). And, in 2007, the Commission
unanimously found that wireless mobile broadband service [data roaming] is not a commercial mobile service
because it is not an "`interconnected service' as defined in the Act and the Commission's rules." See Appropriate
Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks
, 22 FCC Rcd 5901, 5916 42
(2007). In addition, where the host provider enables data roaming as an information service to the subscriber,
Section 153(51) is yet another bar to common carrier regulation." Section 153(51) provides that "a
telecommunications carrier shall be treated as a common carrier...only to the extent that it is engaged in providing
telecommunications services. 47. U.S.C. 153 (51). The Order so much as concedes this, asserting that data
roaming is not a common carrier requirement in an attempt to avoid the Act's clear prohibitions.
2 See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers
of Mobile Data Services
, Order on Reconsideration and Further Notice of Proposed Rulemaking, WT Docket No.
05-265, 25 FCC Rcd 4181 (2010); Reexamination of Roaming Obligations of Commercial Mobile Radio Service
Providers,
Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 05-265, 22 FCC Rcd
15817 (2007).
3 See Orloff v. FCC, 352 F.3d 415, 420 (D.C. Cir. 2003) (agreeing with the Commission's conclusion that the
legality of Verizon's individualized sales concessions practice did not depend on the company's designation as a
common carrier, but rather on whether the practice was unjust or unreasonable); see also Iowa Telecomms. Servs. v.
Iowa Utils. Bd.
, 563 F.3d 743, 750 (8th Cir. 2009) (affirming the district court's order and agreeing with the Iowa
Utilities Board finding that Sprint's individually negotiated, private contracts did not outweigh the evidence that
Sprint was acting as a telecommunications carrier). See generally Ex Parte Letter from John T. Scott, III, Vice
(continued....)
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individually negotiated under our rules today underscores that individualized negotiations are not the
touchstone of common carrier status.
The NARUC standard for determining common carriage is straightforward: whether a carrier is
free to decide "whether and on what terms to deal."4 We mandate today that a wireless provider must
enter into a data roaming deal (the whether) and the terms of the deal (the what). These are Title II
common carrier requirements that are not permitted under Section 332(c) 5
Relevant precedent makes clear that the character of regulatory obligations determines whether
they constitute common carrier treatment, not the words used to describe them or the purported source of
authority.6 While the Order substitutes a new standard-- "commercially reasonable" for Title II's "just
and reasonable" and "not unreasonably discriminatory" as a measure to assess terms and conditions--and
a new source of authority--Title III--the character of the obligations is the same.7 The obligations
fundamentally track the obligations the previously Commission imposed under sections 201 and 202. As
if to underscore the point, the dispute resolution factors of the Order are built upon the provisions in last
year's Order on Reconsideration confirming roaming obligations on voice services under Title II.8 What
is worse, the structure we create today creates perverse incentives for parties seeking mandated roaming
agreements. There will now be a real risk of a revolving door as parties file repeated complaints
attempting to get the lowest mandated rate. This type of gamesmanship should not be permitted as it will
undermine the commercial process and create a non-trivial burden on Commission resources.
I agree that consumers expect the ability to access their voice and data services nationally. On the
record before us, most consumers have that ability today. National, regional, and new entrants all
(Continued from previous page)


President & Deputy Gen. Counsel, Regulatory Law, Verizon Wireless, to Marlene H. Dortch, Sec'y, FCC, WT
Docket No. 05-265, at 7 (Mar. 30, 2011).
4 Nat'l Ass'n of Regulatory Util. Comm'rs v. FCC (NARUC I), 525 F.2d 630, 642 (D.C. Cir. 1976) (stating it is not
common carriage if "there is [any] indication in the proposed regulations that [providers] are to be in any way
compelled to serve any particular applicant, or that their discretion in determining whom, and on what terms, to
serve, is to be in any way limited").
5 47 U.S.C. 332(c).
6 FCC v. Midwest Video Corp., 440 U.S. 689, 702 (1979); NARUC I, 525 F.2d at 644 ("A particular system is a
common carrier by virtue of its functions, rather than because it is declared to be so.").
7 It is noteworthy that Courts have held that an element of commercial reasonability is the ability to walk away from
negotiations. See, e.g., Centennial P.R. License Corp. v. Telecomms. Regulatory Bd, No. 10-1091, 2011 U.S. App.
LEXIS 2341, at **46-47 (1st Cir. Feb. 7, 2011) (holding that "commercially reasonable efforts" do not require a
wireless carrier to reach an interconnection arrangement with "all suitors" when there is a "business, technology or
efficiency ground" justification for not reaching an agreement); W. Tex. Transmission, L.P. v. Enron Corp., 907 F.2d
1554, 1563-64 (5th Cir. 1990) ("Whether a specific condition is [commercially] reasonable must be determined by
examining the circumstances of a particular case.") (citation omitted). The Order removes that option by giving the
Commission the option of imposing the terms and conditions of the best and final offer of a party requesting
roaming.
8 See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers
of Mobile Data Services
, 25 FCC Rcd at 4182 2, 4200-01 37-40 (reiterating that automatic voice roaming is a
common carrier obligation for CMRS carriers and that roaming disputes would be resolved taking into account
eleven non-exclusive factors to determine whether a CMRS provider's response to a particular request for automatic
roaming was reasonable).
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advertise prominently on their websites nationwide data availability.9 Many of those most actively
seeking regulatory intervention have nationwide 3G data roaming arrangements in place. Overall, our
record shows that there are not generalized or categorical refusals to deal by wireless providers. Instead,
there is a fundamental inability to agree on financial terms and conditions, primarily rates. This is a
compelling difference to me. It raises not only the issue of whether the Commission is best equipped to
determine a "commercially reasonable" market rate., but also is an area that Congress has specifically told
the Commission to avoid.
With respect to the rates, I hope that our implementation of this Order will not result in mandated
rates that are so low as to adversely affect the incentives of any carriers to invest in facilities-based
services. We all share a collective goal of nationwide 4G coverage, and we must seek to defend that goal
in our approach to data roaming complaints. Regulator-sanctioned roaming rates could well create
disincentives for host carriers to build the next tower and would create similar disincentives for roaming
carriers to invest and expand their own networks.
This is particularly true with respect to 4G services. The 4G rollout is ongoing; carriers are
investing billions in their next-generation networks, which bring a host of additional technical and
technological challenges. A more prudent course would have been to limit the reach of this decision to
allow 4G deployment to proceed, and for carriers to understand the challenges and opportunities of those
new networks prior to the government mandating access.
While I do not vote for this Order, I nonetheless call on all parties, both those requesting roaming
and host networks, to treat each request for data roaming services seriously and in good faith. With or
without the "regulatory backstop" envisioned in this Order, it is ultimately incumbent upon our nation's
mobile carriers to work together to develop the data roaming environment that meets the needs and
expectations of each of us as we increasingly come to rely upon mobile data for all our communication
needs.
I respectfully dissent. Nonetheless, I would like to thank everyone in the Commission who
participated in this long endeavor. I appreciate your hard work and dedication.


9 See, e.g., Sprint Nationwide Coverage,
http://coverage.sprint.com/IMPACT.jsp?mapzip=&covType=sprint&returnUrl=http%3A%2F%2Fshop2.sprint.com
%2FNASApp%2Fonlinestore%2Fen%2FAction%2FDisplayPhones%3FINTNAV%3DLEG%3AHE%3APhones&l
anguage=EN (last visited Apr. 6, 2011); T-Mobile - Personal Coverage Check, http://www.t-
mobile.com/coverage/pcc.aspx (last visited Apr. 6, 2011); MetroPCS Coverage,
http://www.metropcs.com/coverage/ (last visited Apr. 6, 2011); U.S. Cellular Voice and Data Maps,
http://www.uscellular.com/coverage-map/voice-and-data-maps.html (last visited Apr. 6, 2011); Cricket Broadband
Coverage Maps,
http://www.mycricket.com/coverage/maps/broadband?z=4&clat=37.02009820136811&clng=-
98.173828125&addr=&city=&state=&zip=&persist=1 (last visited Apr. 6, 2011); Cincinnati Bell Cincinnati
Wireless Coverage Map, http://www.cincinnatibell.com/consumer/wireless/coverage/ (last visited Apr. 6, 2011).
79

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