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"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd"i~'^:DTddDDDd4D48ddddddddddDDd||||DXp||dp||ppL8LTdDddXdX8dd88X8ddddLL8dXXXLP8PlD4lTDDD4DDDDDDdDd8|d|d|d|d|dX|X|X|X|XD8D8D8D8dddddddddpX|ddddpXd|d|d|d|dXXlXx|X|X|X|XdddldldD8DdDDDddllXp8pHpDp@p8dtdddd|L|L|LdLdLdLllpHp8pTddddddplpLpLpLdpDddLpDpdx4ddC,CWddddddddddddddddddddddddddddddddddddddddNHxxHhdLdddddd8@d<@d<DDppdDDxddzHxxHkddDpd<"dxtldxxd"i~'^#)0<(-((((((((((---#J:55:2-:::2F::-:5-2::K::2%(#(#(#(((>((((((:((#&&++%(:#:#:#:#:#F45#2#2#2#2#:(:(:(:(:(:(:(:(:(:(:#:(:':(:(:(-(:#:#:#5#5#5+5#:22#2#2#2#:(:(:(:+:(:+:(((8-++:(22 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LL2L"",,2d""/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNPersonal Communications Services (PCS), cellular, CMRS Specialized Mobile Radio (SMR),  xCMRS paging, CMRS 220 MHz service, and forprofit interconnected business radio services to  xoffer fixed wireless services on their assigned spectrum on a coprimary basis with mobile services. Specifically,   NXx We conclude that fixed services, excluding broadcast services, are permissible service offerings on spectrum allocated for broadband and narrowband CMRS.(#   {Xx We modify our CMRS service rules to allow spectrum allocated to these services to be   ]used on a coprimary basis for fixed services, mobile services, or any combination of the   two, and we eliminate the classification of fixed services as limited to auxiliary or ancillary uses in these bands.(#   {Xx We maintain the technical rules currently in place for CMRS and require licensees who wish to offer coprimary fixed services on CMRS spectrum to comply with those rules.(#   !Xx We refer universal service issues that may arise from our decisions in this Report and  Xb-Order to the Commission's pending universal service proceeding, CC Docket No.96-45.$b {O-  /ԍxFederalState Joint Board on Universal Service, Notice of Proposed Rule Making and Order Establishing  {O-Joint Board, CC Docket No. 9645, FCC 9693 (rel. March 8, 1996) [61 Fed. Reg. 10499 (March 14, 1996)].$(# x  X4-  x3. These rule changes will allow CMRS providers greater flexibility to provide innovative  x<wireless services to meet consumer demands. The record in this proceeding and in the testimony  X- xypresented at our Spectrum En Banc hearing\$ {O-  ԍxThe Spectrum En Banc was held on March 5, 1996. The hearing consisted of four panels and addressed  xsuch issues as future spectrum demand and technology trends. We incorporate the written submissions and oral  {Om-testimony from the En Banc Hearing into the record of this proceeding.  both indicate that CMRS providers, in addition to  xdeveloping mobile services, are seeking to provide a wide range of fixed service offerings to  xconsumers, and in many instances to combine fixed and mobile technologies into integrated  X- xservice packages. Potential fixed wireless services include not only "wireless local loop," i.e.,  xfixed wireless links to connect residences, apartment buildings, office buildings and other  x.structures with wireline local exchange networks, but also fixed wireless architectures that can  xlink end users to cellular switches, and remote base stations. By giving CMRS providers greater  x flexibility to provide these fixed services, whether separately or in combination with mobile  xservices, we establish a framework that will stimulate wireless competition in the local exchange  xmarket, encourage innovation and experimentation in development of wireless services, and lead  X$-to a greater variety of service offerings to consumers.pp  X-  lx4. While we adopt rules allowing licensees to offer fixed services over CMRS spectrum,  x{we determine that it would be premature to make a final determination with respect to the  X - xregulatory treatment of licensees providing such services. Therefore, in the Further Notice of" H,-(-(ZZ"  X- xkProposed Rule Making, we seek additional comment on the regulatory treatment of entities offering fixed services on CMRS spectrum:   Xx We do not intend to alter the regulatory treatment of licensees offering the types of   #ancillary, auxiliary, and incidental fixed services that have been offered by CMRS providers under our rules prior to this order.(#   Xx We propose to establish a presumption that licensees offering other fixed services over    CMRS spectrum should be regulated as CMRS. We seek comment on such a presumption and, if adopted, what factors should be used to support or rebut this presumption. (# x X -g II. BACKGROUND ĐTP  X -  O x 5. Our current rules for CMRS services allow licensees to provide all forms of mobile  xservices on their assigned spectrum. The Communications Act, as amended, defines "mobile  xservice" as a "radio communication service carried on between mobile stations or receivers and  X{- xland stations, and by mobile stations communicating among themselves."j{ yO-Ѝx47 U.S.C.  153(27) (formerly  153(n)). j In the CMRS Second  Xf- x/Report and Order, the Commission interpreted the statutory definition of mobile service to  XQ- xzinclude "all auxiliary services provided by mobile services licensees."@\QX {OZ-  ԍxImplementation of Sections 3(n) and 332 of the Communications Act, GN Docket No. 93252, Second  {O$- xKReport and Order, 9 FCC Rcd 1411, 14241425 (1994)("CMRS Second Report and Order");  see also 47 C.F.R. 20.7.@ This enables parties  x-licensed to provide service over CMRS spectrum to provide some forms of fixed services on their  xassigned spectrum. Our PCS rules, for example, permit PCS licensees to provide any fixed  X - xservice that is "ancillary" to their mobile operations."  | {O9-  1ԍxSee 47 C.F.R.  24.3;  see also Amendment of the Commission's Rules to Establish New Personal  {O-Communications Service, GEN Docket no. 90314, Second Report and Order, 8 FCC Rcd 7700, 7712." Likewise, SMR providers may use licensed  xspectrum for certain fixed uses on a secondary, noninterference basis to the primary mobile  X- x>operations of any other licensee.  {Og-  ԍxSee, Amendment of Part 90 of the Commission's Rules to Permit Secondary Fixed Tone Signalling and  {O1 - xKAlarm Operations by End Users of Trunked SMR Systems, PR Docket No. 8678, Report and Order, 1 FCC Rcd  x926 (1986); Amendment of Part 90 of the Commission's Rules to Permit ExclusiveUse Systems to Conduct  xSecondary Fixed Signaling and Alarm Operations without Conforming to the Provision of Section 90.235, PR Docket  {O"-No. 91322, Report and Order, 7 FCC Rcd 4574 (1992); see also 47 C.F.R.  90.317. Cellular carriers may provide "auxiliary" common carrier" ,-(-(ZZr"  xservices and services premised on the use of alternative cellular technologies, provided such  X-services do not interfere with cellular service. \ {Ob-  ԍxSee Amendment of Parts 2 and 22 of the Commission's Rules to Permit Liberalization of Technology and  xAuxiliary Service Offerings in the Domestic Public Cellular Radio Telecommunications Service, GEN Docket No.  {O-87390, Report and Order, 3 FCC Rcd 7033 (1988); see also 47 C.F.R.  22.901. h x  X-  x6. These current rules were intended to offer some flexibility to licensees providing  xMCMRS services who seek to provide fixed services that complement or support their mobile  xservice offerings. In the PCS context, for example, we have consistently stated that we  xenvisioned PCS providers offering a broad array of services, including services that could  X_- xpotentially extend, replace, and compete with wireline local exchange service.P \_ {O -  ԍxSee Amendment of the Commission's Rules to Establish New Personal Communications Services, GEN  {O - xDocket No. 90314 and ET Docket No. 92100, Notice of Proposed Rule Making and Tentative Decision, 7 FCC Rcd 5676, 5681,  10 (1992).P These services,  xincluding "wireless local loop," may be delivered using a system architecture that is mobile or  X1-fixed, or that combines mobile and fixed components.. 1 yO-  /ԍxMobile service is one that allows the end user to communicate while moving or from different locations.  {O-Fixed service requires the end user to be at a set location. See 47 U.S.C.  153(27); 47 C.F. R.  2.1..  X -  x7. The current rules also place some limits on the ability of licensees on CMRS spectrum  xto offer fixed services, however. In reviewing the definition of "mobile service" under the  xCommunications Act, "we have concluded that services having both fixed and mobile capabilities,  X - xe.g., services provided through dualuse equipment, fall within the statutory definition."^ j  {O-ԍxCMRS Second Report and Order, para. 38.^ In  X - xcontrast, we have concluded that services that are solely fixed in nature, e.g., fixed pointtopoint  x[services such as Basic Exchange Telephone Radio Service (BETRS), do not constitute "mobile  X}- xyservice" within the meaning of the statute.:}  {O*-ԍxId.: The current rules do not allow fixed services to be  xjoffered on spectrum allocated for PCS or other CMRS unless they are ancillary to or in support  xof mobile service offerings, or unless the carrier obtains a waiver allowing it to offer primarily  X8- x=fixed service.8  {Ow -  >ԍxSee Allocation of Spectrum Below 5 GHz Transferred from Federal Government Use, ET Docket 9432,  {OA!-First Report and Order and Second Notice of Proposed Rule Making, 10 FCC Rcd 4769, 4781 (1995). The rationale for prohibiting nonancillary fixed uses of the spectrum has been  xythat the amount of spectrum available for the development of new mobile services such as PCS  X -is limited and that alternative spectrum is available for fixed services.  {O$-  ԍxAmendment of the Commission's Rules to Establish New Personal Communications Services, GEN Docket  {Oo%-No. 90314, Second Report and Order, 8 FCC Rcd 7700, 7712 (1993). x"F,-(-(ZZ "Ԍ X-  x8. The limitations in our rules governing provision of fixed services on PCS and other  xjCMRS spectrum have caused uncertainty among carriers. Although terms such as "ancillary,"  x"auxiliary," and "incidental" are intended to provide licensees who offer CMRS services with  xflexibility, these terms are not defined in the rules and have been subject to varying  xinterpretations. As a result of this lack of clarity, we have found that carriers are hesitant to take  xadvantage of the flexibility allowed by the current rules to explore potential flexible uses of their  xspectrum without further guidance from the Commission. In addition, carriers have indicated  xyinterest in obtaining greater flexibility than the current rules may allow to provide fixed wireless services as a competitive alternative to wireline or mobile wireless service.  X -  x9. The Commission has also recently taken actions in several other proceedings to  x.increase the licensee's flexibility in choosing what services to provide. In creating the General  X - xWireless Communications Service (GWCS), the Commission authorized use of the 46604685  X - xMHz band to provide mobile or fixed services or a combination of the two.  yON-  ԍxAllocation of Spectrum Below 5 GHz from Federal Government Use, 46604685 MHz, ET Docket No. 94 {O-32, Second Report and Order, 11 FCC Rcd 624, 672 (1995) Similarly, the  xCommission has stated that Multipoint Distribution Service (MDS) stations may render any kind  X - xof communications service on a common carrier or noncommon carrier basis.hZ " yOz-  |ԍxAmendment of Parts 21 and 74 of the Commission's Rules with Regard to Filing Procedures in the  xMultipoint Distribution Service and in the Instructional Fixed Television Fixed Service, MM Docket No. 94131,  {O -Report and Order, 10 FCC Rcd 9589, 9619 (1995).h The Commission  xhas also proposed to allow fixed operations on a primary basis with land mobile operation in the  Xy-220222 MHz band.\yD yOn-  ԍxAmendment of Part 90 of the Commission's Rules to provide for the Use of the 220222 MHz Band by the  {O6- xPrivate Land Mobile Radio Service, PR Docket No. 89522, Second Memorandum Opinion and Order and Third  {O-Notice of Proposed Rule Making, 11 FCC Rcd 188, 22628 (1995).  Xb-  X4-   IV. FIRST REPORT AND ORDERTP  X-xA. F lexible Use of CMRS Spectrum x  X-  /x 10. Background. We sought comment in the Notice on alternative approaches to allowing  xPCS and other CMRS providers more flexibility to offer fixed services, including: (1) adopting  xa rule that would expressly allow CMRS providers to offer "fixed wireless local loop," (2)  xpermitting CMRS providers to offer wireless local loop and other defined fixed services, or (3)  X~- x.allowing CMRS providers to offer any form of fixed service without restriction. In the Notice  Xi- xwe proposed to apply whatever increased flexibility we granted to broadband CMRS services,ih  {O%-ԍxWe defined broadband CMRS to include broadband PCS, cellular and SMR service. Notice at  1."i ,-(-(ZZ"  xand sought comment on whether narrowband CMRS services should also have such increased  X-flexibility. yOb-  ԍxWe defined narrowband CMRS as paging, narrowband PCS, commercial 220 MHz service, and forprofit  {O*-interconnected business radio service. Notice at  18. x  X-  Ox 11. Comments. An overwhelming majority of the commenters support amending our  xrules to allow all CMRS providers to offer all types of fixed wireless services without restriction.  xjMost commenters agree that the Commission's current rules are unclear regarding the extent to  x[which various broadband CMRS providers may offer fixed services. These commenters argue  xthat the Commission should amend its rules to allow fixed services to be provided on CMRS  x|spectrum on a coprimary basis rather than being limited to ancillary or auxiliary uses.  xCommenters contend that allowing carriers greater flexibility to provide fixed services will lead  xito more innovation and diversity of service offerings, additional competition in the local exchange  xmarket, expanded use of wireless services in areas that have traditionally not been served by wireline carriers, and competitive prices and enhanced choice for consumers.  X -  x 12. Commenters who favor flexibility also oppose limiting the definition of permissible  xfixed service to wireless local loop, on the grounds that such a limitation would inhibit the  xMdevelopment and deployment of technology, make it difficult for wireless providers to meet  Xy- xconsumer demand, and create unnecessary confusion.Jy" yOL-ԍxAT&T Reply Comments at 4.J PCIA contends that granting licensees  xKthe authority to provide all fixed services on spectrum allocated for CMRS avoids the expenditure  xof both Commission and service provider resources on defining "wireless local loop" and  X4- xinterpreting that definition.D4 yO-ԍxPCIA Comments at 6.D PCIA further reasons that if wireless local loop service is permitted  xyand other fixed services are not, licensees may engage in technical or legal contortions in order  X- xto fit their fixed service offerings into the "wireless local loop" definition.aB {O-ԍ#X\  P6G;IP#xId.a Bell Atlantic argues  x.that, to the extent that existing rules create uncertainty because they employ different terms in  xauthorizing fixed service by different types of CMRS providers, the Commission should eliminate  x.that uncertainty by stating that any CMRS provider may offer fixed services provided that the  xtwo longstanding requirements are met: mobile service continues to be offered; and the fixed  X-service does not interfere with the provision of mobile service.M yO"-ԍxBell Atlantic Comments at 4.M  Xe-  !x 13. Most commenters also contend that allowing carriers maximum flexibility to provide  xfixed as well as mobile service will not have a negative impact on the availability of spectrum  xjto provide mobile service. Telular argues that there is no longer any regulatory need to ensure  xthat sufficient spectrum will be available for mobile services in addition to fixed services because" d ,-(-(ZZ"  xa highly competitive emerging marketplace will ensure that licensees service the public  X- xefficiently. yOb-ԍ#X\  P6G;IP##C\  P6QIP#xTelular Comments at 9. AT&T points out that it is likely that CMRS providers who have invested billions  X- xof dollars in mobile facilities will retain the primary mobile character of their offerings.X yO-ԍ#X\  P6G;IP##C\  P6QIP#xAT&T Comments at 4. CTIA  xstates that the market will ensure that spectrum licensed for CMRS services will be used for fixed  X- xservices only when it is efficient to do so. yO= -ԍ#X\  P6G;IP##C\  P6QIP#xCTIA Comments at 4. Omnipoint notes that a consensus in favor of  x/allowing the market to decide the best use of available CMRS spectrum is evident, and this  Xv- xapproach seems most consistent with the Telecommunications Act of 1996's (1996 Act)Zvx yO -ԍxPub. L. No. 104104, 110 Stat. 56 (1996).Z  X_- x=emphasis on deregulation and competition.O_ yO-ԍxOmnipoint Reply Comments at 3.O Celpage notes that consumer demand for mobile  XH- x[services is increasing and CMRS providers will not ignore consumer demands. H yO-ԍ#X\  P6G;IP##C\  P6QIP#xCelpage Comments at 4. Celpage also  xargues that fixed and mobile uses of CMRS spectrum are complementary rather than mutually  x[exclusive, so that allowing a single carrier to provide both types of service will result in greater  X -conveniences and cost savings to the public.! (  yO-ԍ#X\  P6G;IP##C\  P6QIP#xCelpage Comments at 5. x  X -  x 14. Commenters also generally support extending flexibility to all CMRS bands, including  X - xboth broadband and narrowband services."X  yO'-  ԍ#X\  P6G;IP##C\  P6QIP#x360 Degrees Comments at 1, Frontier Comments at 2, Worldcom Comments at 2, Motorola Comments at  xJ2. Worldcom notes that increased competition can help bring down access rates of incumbent LECs to the ultimate benefit of the end user. AMTA argues that creating fixed service flexibility  xonly for a certain portion of CMRS spectrum, such as PCS, makes no sense in light of the FCC's  X- xentire regulatory program for wireless services.# yO-ԍ#X\  P6G;IP##C\  P6QIP#xAMTA Comments at 5. AT&T agrees that in light of the regulatory  xobjectives of Section 332 of the Communications Act, similar treatment should be afforded all  Xb-categories of CMRS that have the potential to compete with PCS.D$bh yO{"-ԍxAT&T Comments at 6.D  X4-  mx15. A few commenters, however, disagree with the proposals set forth in the Notice.  X- xBANM opposes the rule changes because it believes that they are not needed.% yO&-ԍ#X\  P6G;IP##C\  P6QIP#xBANM Comments at 2. BANM claims"%,-(-(ZZ"  xthat fixed services are a fledgling business for CMRS providers and that few, if any, are offering  X- xwhat the Notice describes as wireless local loop service. Accordingly, BANM argues that there  X- x<is no rationale to examine possible changes to the status quo at this time.& {OM-ԍ#X\  P6G;IP##C\  P6QIP#xId.Ĉ Comcast believes the  x.Commission should clarify that all auxiliary services provided by mobile services licensees are  X- xwithin the definition of "mobile service" without using a Notice.G'Z yO-ԍxComcast Comments at 2.G RCC notes that the proposals  X- xlset forth in the Notice merely clarify types of service which cellular licensees already are  X~-authorized to provide.C(~ yO -ԍxRCC Comments at 3.C  XP-  x16. PCS One opposes the Commission's proposal to allow cellular licensees to provide  X9- xfixed wireless services.G)9z yOd-ԍxPCS One Comments at 2.G PCS One argues that the Commission must permit PCS, for at least a  xreasonable interval, greater flexibility than cellular in the use of its spectrum. According to PCS  xOne, this is necessary in order to establish a more level playing field while PCS enters the  X - xmarketplace and attempts to establish itself against the entrenched cellular operators.*  {O-  kԍxId. PCS One argues that this is especially important in light of the fact that PCS licensees had to pay for their licenses in auctions, and also have to pay to relocate incumbents. Omnipoint  xsupports operational flexibility for PCS providers, arguing that PCS offerings will change over  xtime as operators buildout their systems, new technology changes PCS capabilities, and  X - xadditional competition further invigorates the local exchange market.I+ d  yO-ԍxOmnipoint Comments at 1.I PacTel and UTC believe  xthat, if the Commission makes a distinction among CMRS providers, PCS licensees should have the greatest flexibility because they received their licenses through the auction process.  XS-  x17. Discussion. The record supports our observation in the Notice that sufficient  xuncertainty exists in our current rules to warrant clarification with regard to the provision of fixed  xservices over spectrum allocated for CMRS. Rather than continuing to define allowable fixed  xyservices in terms of whether they are "ancillary," "auxiliary," or "incidental" to mobile services,  xwe conclude that our rules should more broadly allow fixed services to be provided on a coprimary basis with mobile services. x  X-  !x18. As a threshold matter, we note that the record in this proceeding strongly supports  x.our proposal to encourage the provision of fixed services by licensees operating in the CMRS  xLbands. Commenters have provided several examples of potential applications of fixed wireless  xztechnology. For example, fixed wireless systems can be imbedded into PBXs and local area  x=networks to permit continued service even when wireline service is interrupted due to weather"X +,-(-(ZZ"  X- xor other emergencies., yOy-ԍ#X\  P6G;IP##C\  P6QIP#xTelular Comments at 3. Call routing may become more efficient by allowing CMRS providers  X- xto offer fixed wireless services.-X yO-ԍ#X\  P6G;IP##C\  P6QIP#xRCC Comments at 4. Omnipoint suggests that fixed wireless links could be used to  xprovide "local loop" to apartment buildings, office buildings, and older homes where rewiring  X- xzcosts are high.. yOT-ԍ#X\  P6G;IP##C\  P6QIP#xOmnipoint Comments at 5. Nortel envisions a variety of "fixed wireless access" services coming into  xhomes and residences that would provide an alternative to endtoend wiring by the carrier from  X-the switch to the end user./x {O -  ԍxEx parte presentation by Northern Telecom to the Wireless Telecommunications Bureau on Fixed Wireless Access on May 14, 1996 (Nortel Presentation).  X_-  x19. We agree with the many commenters that support the Commission's proposal to allow  xCMRS providers to offer fixed wireless services. We believe that the public interest is better  xyserved by not attempting to limit potential use of CMRS spectrum to specific applications. We  xagree with SBC Communications that imposing such a limitation could lead to difficult  X - xdefinitional questions about what constitutes "wireless local loop" or other defined services.R0  yO-ԍxSBC Communications Comments at 3.R For  xexample, Nortel's concept of fixed wireless access includes not just lowpower wireless "drops"  xfrom the street to the home, but also fixed wireless architectures that would link end users to the  X - x.public switched network through cellular switches, and remote base stations (in rural areas).K1 b  {O-ԍxNortel presentation.K  xIf we were to restrict fixed service to certain configurations, Nortel and other carriers might be  xNreluctant to pursue some potentially efficient options out of concern that they would be  xconsidered to fall outside the definition of our prescribed service definition. Rather than limit  x[the flexibility of carriers in this manner, we prefer to encourage innovation and experimentation through a broader, more flexible standard.  X-  Nx20. Additional support for this approach comes from the #Xj\  P6G;+XP#Commission's en banc hearing  X- xon spectrum policy, held on March 5, 1996.L2Z  yO -  >ԍxThe hearing consisted of four panels and addressed such issues as future spectrum demand and technology  {Ou!- xtrends. We incorporate the written submissions and oral testimony from the En Banc Hearing into the record of this proceeding. L In written and oral testimony before the  xCommission, a number of participants in the hearing stressed the importance of allowing CMRS  xproviders the flexibility to offer fixed wireless services. Northern Telecom, for example, noted  x{that local access competition will stimulate a rapid demand for fixed wireless service, and  x\encouraged the Commission to give wireless operators service flexibility to respond to user" 2,-(-(ZZ"  X- xdemands.3 yOy-ԍxTestimony of David Twyver, President, Wireless Networks, Northern Telecom, March 5, 1996, at 3. The National Association of Broadcasters agreed that allowing greater flexibility for  xMCMRS providers would have significant public interest benefits by stimulating competition  X- xjbetween wireless and wireline telephony.4X yO-  ԍxTestimony of Lynn D. Claudy, Senior Vice President, Science and Technology, National Association of Broadcasters, Spectrum En Banc Hearing, March 5, 1996, at 2. Freedom Technologies, Inc., testified that allowing  xgreater flexibility in spectrum use is consistent with the Commission's responsibility to ensure  X- xthe efficient use of spectrum.5 {O -  kԍxTestimony of Charla M. Rath, Freedom Technologies, Inc., "Flexibility in Spectrum Allocation and Use:  {O -Achieving Efficient Use of Spectrum," March 5, 1995, at 8. On a panel concerning technology trends, COM21 asserted that  x\rules promoting flexible use of spectrum will create incentives for the development of better  Xv- xZsharing technologies.6v  yO3-ԍxTestimony of Mr. Paul Baran, Chairman of Com21, Inc., submitted by CTIA, March 5, 1996. AirTouch submitted that flexibility should be an integral part of spectrum  x.policy because such flexibility increases innovation and competition, and helps to ensure that  XH-spectrum is devoted to its highest and best uses.7H yO-  ԍxTestimony of F. Craig Farrill, on behalf of AirTouch Communications, March 5, 1996, at 1 (Summary of Statement). x  X -  ?x21. In the Notice, we sought comment on whether allowing CMRS providers to provide  xzfixed services without restriction could result in limiting capacity for mobile services. In that  xregard, we observed that current technology supports use of spectrum to provide mobile service  X - xonly below the 3 GHz band, while fixed uses are feasible on higher bands.N8  {O|-ԍxId., paras. 14, 17, 25.N Based on the  x-record, we conclude that this need not be a concern. First, with the advent of PCS and other new  xCMRS services, we have significantly increased the amount of spectrum available for mobile  xjservices over what was available previously. Second, carriers are using advanced technology.  xAs Sprint Spectrum and US West point out, development of digital technology has led to  xincreases in potential CMRS spectrum capacity by a factor of ten, and those technologies are  XM- xLlikely to improve dramatically in the future.9M  yO-ԍ#X\  P6G;IP##C\  P6QIP#xSprint Spectrum Comments at 3, note 6, US West Comments at 3. Third, nothing in the record suggests that giving  xlicensees who provide CMRS services the flexibility to offer fixed service would make them less  xjresponsive to market demand for mobile service. In fact, the record indicates that most carriers intend to offer consumers integrated packages and combinations of mobile and fixed services.  X-  ^x22. For these reasons, we conclude that licensees should have maximum flexibility to  xLprovide fixed or mobile services or combinations of the two over spectrum allocated for CMRS  X- xservices, including PCS, cellular, and SMR services . We agree with the majority of commenters  xithat limitations on fixed uses are unnecessary because the market is the best predictor of the most" 9,-(-(ZZ"  x>desirable division of this spectrum. In light of the dynamic, evolving nature of the wireless  xindustry, we are concerned that regulatory restrictions on use of the spectrum could impede  xkcarriers from anticipating what services customers most need, and could result in inefficient  xispectrum use and reduced technological innovation. Allowing service providers to offer all types  xof fixed, mobile, and hybrid services in response to market demand will allow for more flexible  xKresponses to consumer demand, a greater diversity of services and combinations of services, and  x-increased competition. This is consistent with the goals of the 1996 Act, which seeks to increase  xicompetition between the various providers of telecommunications services, including competitive  XH- x!alternatives to traditional local exchange service.:H {O -ԍxSee S. Conf Rep. No. 104230, 104th Cong., 2d Sess. 1 (1996); see also 47 U.S.C.  251261. All consumers will also benefit from  xtechnological advances in fixed services and fixed/mobile combinations that potentially could be stifled by restrictive service definitions.  X -  Nx23. In the Notice we proposed to increase flexibility to provide fixed wireless service for  xLbroadband CMRS services broadband PCS, cellular, SMR. We sought comment on whether  xnarrowband CMRS services paging, narrowband PCS, commercial 220 MHz service and  xfor-profit interconnected Business Radio Service should also be permitted greater flexibility  X- xto offer fixed wireless services.;~Z yO-  LԍxWe also proposed to modify our rules to allow fixed operation on the 220222 MHz band on a primary basis  {Oe- xin PR Docket No. 89522. See Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220 {O/- x222 MHz Band by the Private Land Mobile Radio Service, PR Docket No. 89522, Second Memorandum Opinion  {O- xand Order and Third Notice of Proposed Rule Making, 11 FCC Rcd 188, 22628 (1995). That proceeding also  xaddresses numerous other issues regarding the service rules for the 220222 MHz band. Our action in this docket  xon the provision of fixed services by CMRS 220 MHz service providers in that band does not predetermine any action we may take on other issues raised in PR Docket No. 89522. We agree with commenters that we should extend the flexibility  X{- xto offer fixed services to the narrowband services set out in the Notice as well as broadband  Xf- xCMRS. In the CMRS Third Report and Order, we found that narrowband and broadband CMRS  xZare potentially competitive with one another and should be subject to comparable regulation. We  xconclude that subjecting narrowband licensees to more stringent regulatory constraints than  xibroadband CMRS providers would be inconsistent with principles of regulatory parity and serves  X - xno public interest goal.q<  {O]-ԍxSee AirTouch/New Vector Comments at 7; CTIA Comments at 5.q By contrast, allowing narrowband CMRS providers to provide fixed  xservices on the same basis as broadband CMRS providers provides incentives for increased  x[innovation, diversity of services, and increased competition. Although there may be technical  xconstraints on the ability to provide fixed service on narrowband channels, we conclude that  xnarrowband licensees should nevertheless be entitled to the regulatory flexibility so that they may  xtake advantage of technological advances that may occur without being required to seek additional  xchanges to the rules. This result is also in keeping with the goals of the 1996 Act to make available the most competitive environment possible for telecommunications services. x"T 2 <,-(-(ZZ"Ԍ X-  x24. For the foregoing reasons, we conclude that service providers using spectrum  xallocated for CMRS should have the flexibility to provide fixed services on a coprimary basis  x<with mobile services. Thus, service providers could choose to provide exclusively fixed services,  X- xexclusively mobile services, or any combination of the two.=Z yO4-  ?ԍxCellular carriers are subject to the requirements set out in Sections 22.901 and 22.933 of our rules, to  xxprovide cellular mobile service upon request to all cellular subscribers in good standing, except in instances where  {O-a cellular provider chooses to provide solely fixed service over its spectrum. See 47 C.F.R.  22.901, 22.933. Accordingly, we modify the  xlanguage in Section 22.901 of the Commission's rules (cellular service), Section 24.3 of the  xCommission's rules (PCS), and Section 90.419 of the Commission's rules (SMR) to establish a  x=uniform description of fixed wireless services that may be offered on this spectrum. We adopt  x-the same modifications to our rules governing narrowband CMRS, including paging, narrowband  XH-PCS, 220 MHz service, and forprofit interconnected Business Radio Services.v>H yO -ԍxThe revisions to Parts 2, 22, 24, and 90 are set forth in Appendix C.v  X -  x25. In adopting these modifications, we retain the prohibition on licensees in these  X - xservices offering broadcast services. ? z {O.-  ԍxBroadcasting is defined in Section 3(6) of the Communications Act, as amended. 47 U.S.C  3(6). See  {O-Subscription Video, Report and Order, 2 FCC Rcd 1001, 10036 (1987).  This prohibition applies regardless of whether licensees  x[are offering fixed or mobile services or a combination of the two. We did not seek comment on  X - xthis issue in the Notice, nor have commenters who favor flexibility suggested that they want or  xneed spectrum to provide broadcast services. In our view, any consideration of whether to alter  xiour rules with respect to allocation of spectrum for broadcast services is beyond the scope of this  x>proceeding. In addition, we note that under applicable international allocation agreements,  X{- xbroadcast use of the spectrum at issue in this proceeding is restricted.P@{ {O-ԍxSee 47 C.F.R.  2.106.P Therefore, we conclude it would be inappropriate to amend our rules in this regard.  XM-x  X6-xB. Technical and Operational Rules  X-  mx26. Background. In the Notice, we sought comment on whether modifications to our  x[technical and operational rules are needed to accommodate fixed uses of CMRS channels if we  X- xadopted our tentative conclusions and permitted such uses.QAh  {O -ԍxNotice at  15, 17.Q We indicated that our intent is to  xlimplement the necessary technical rules in order to minimize interference without unduly  X-hindering a carrier's ability to offer a variety of services.IB  {OY$-ԍxNotice at  15.I x" B,-(-(ZZo"Ԍ X-  x27. Comments. AirTouch/New Vector and SBC claim the Commission should leave  X- xexisting technical rules intact in order to preserve the current interferencefree environment.C yOb-ԍ#X\  P6G;IP##C\  P6QIP#xAirTouch/New Vector Comments at 8, SBC Comments at 4.  xySBC argues that fixed services should be engineered so that they operate within their assigned  X- xspectrum and do not interfere with other carriers operating on their assigned spectrum.DX yO-ԍ#X\  P6G;IP##C\  P6QIP#xSBC Comments at 45.  xjNextel requests that, with regard to fixed services provided by SMR licensees, the Commission  x>should apply all of the existing Part 90 technical standards to fixed SMR services as well as  xmobile SMR services. Nextel contends that Part 90 SMR cochannel protection and interference  xstandards must be applied to fixed services along with mobile services to prevent harmful  XH- xLinterference among cochannel operators.EH yO -ԍ#X\  P6G;IP##C\  P6QIP#xNextel Comments at 3. However, AirTouch/New Vector cautions against  xximposing stricter technical standards on the provision of fixed service that could result in onerous  X -retrofitting requirements for carriers with operational wireless systems.F x yOC-ԍ#X\  P6G;IP##C\  P6QIP#xAirTouch/New Vector Comments at 9.  X -  x28. Several parties also request specific changes to technical rules. PacTel requests that  xthe Commission exempt inhome PCS base stations operating at 100 milliwatts or less from the  xNrequirement in Section 24.237 that base stations must undergo interference analysis and  X - xLcoordination with incumbents before being made operational.GZ  {O`-  =ԍ#X\  P6G;IP##C\  P6QIP#xPacTel Comments at 5. See also letter from Betsy Stover Granger, Pacific Bell Mobile Services, to Michele  xFarquhar, FCC (dated May, 8, 1996); letter from Wayne V. Black, Keller and Heckman, counsel for American Petroleum Institute, to Michele Farquhar, FCC (dated June 6, 1996). RCC and SR Telecom support  xmodification of certain cellular rules to permit mobile stations to communicate with "wireless  Xy-local loop" equipment.^Hy*  yOT-ԍxRCC Comments at 7; SR Telecom Comments at 12.^  XK-  x29. Discussion. The comments that we received regarding the technical rules indicate  xNthat we should maintain the technical rules that are currently in place and require CMRS  xproviders who wish to offer coprimary fixed services to comply with those rules. We agree with  x=SBC that fixed services should be engineered so that they conform to our existing interference  xxrules and do not interfere with the operations of cochannel or adjacent channel carriers providing  xLmobile service. Thus, so long as outofband and cochannel/frequencyblock criteria are met,  x[base stations used to support fixed services may operate at the same maximum power levels as  xbase and mobile stations on the same frequencies. We also decline to adopt the specific rule  xchanges proposed by PacTel relating to inhome base stations. The issue raised by PacTel is  xoutside the scope of this proceeding. We will also defer consideration of the cellular rule changes  xrequested by RCC and SR Telecom. We intend to consider technical concerns regarding CMRS,"e H,-(-(ZZ1"  xincluding those discussed above, in future proceedings that will more broadly address conforming  X-our technical rules for CMRS providers.I^ {Ob-  \ԍxSee, e.g., Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220222 MHz  {O,- x;Band by the Private Land Mobile Radio Service, PR Docket No. 89522, Second Memorandum Opinion and Order  {O-and Third Notice of Proposed Rule Making, 11 FCC Rcd 188 (1995).  x  X-x  ` ` C. Table of Frequency Allocations  X-  1x30. Background. The Notice included proposed changes to the Table of Frequency  xNAllocations to include fixed service as a primary service offering in conjunction with the  Xa- xproposals set forth in the Notice. In the Notice, we proposed to amend the domestic Table of  xFrequency Allocations for the 806821, 851866, 896901, and 935940 MHz bands to permit  X5-them to make use of the allocations for both fixed and mobile services on a coprimary basis.IJ5 {O -ԍxNotice at  26.I  X -  0x31. Comments. Motorola requests that the Commission modify the Table of Frequency  x[Allocations to make it consistent with the Commission's proposal to allow cellular providers to  X - xoffer both fixed and mobile services.K  yO -ԍ#X\  P6G;IP##C\  P6QIP#xMotorola Comments at 9. SR Telecom supports Commission proposal to amend the  X -Table of Frequency Allocations.L  yO-ԍ#X\  P6G;IP##C\  P6QIP#xSR Telecom Comments at 17.  X-  x32. Discussion. We will amend the Table of Frequency Allocations as proposed in the  X}- x Notice to permit licensees to make use of the affected allocations for both fixed and mobile  xservices on a coprimary basis. In modifying the Table of Frequency Allocations, we will  x[comply with Motorola's request and clarify that the Table applies to the fixed wireless services we are now allowing licensees to offer.  X -  Ax 33. Specifically, we allocate the 27.4127.54, 30.5632, 3334, 3536, 4243.69, 150.8 X- x152.855, 154156.2475, 157.45161.575, 220222,M  yOF-  ԍxThe 220222 MHz band is shared Government/nonGovernment spectrum. During our consultations with  xYNTIA regarding this band, the Commission and NTIA agreed to allocate the 220222 MHz band to the fixed service  x;on a coprimary basis for both Government and nonGovernment operations. Accordingly, the fixed service is also added to the Government column in the 220222 MHz band on a coprimary basis.  454455, 456462.5375, 462.7375467.5375,  x467.7375512, 806821, 824849, 851866, 869894, 896901, 929930, 931932 and 935940  X- xMHz bands to the fixed service on a co-primary basis.N  yO%-  =ԍxThe narrowband and broadband PCS spectrum (901902, 930931, 940941 and 18501990 MHz) is already allocated to the fixed service on a coprimary basis. In addition, we delete footnotes US330"N,-(-(ZZ"  xand US331, which prohibited narrowband and broadband PCS licensees from providing fixed services, except for ancillary fixed services used in support of mobile PCS.  X-  nx!34. As an editorial matter, we are converting the format of the Table of Frequency  xAllocations so that the individual frequency bands are represented as blocks of uniform size, in  xaccordance with a request made by the Federal Register. Further, we are updating the  xinternational table of the Table of Frequency Allocations to reflect the Final Acts of the 1992  X_- xWorld Administrative Radio Conference.O$_ {O-  ԍxSee International Telecommunication Union's Final Acts of the World Administrative Radio Conference for  {O - xDealing with Frequency Allocations in Certain Parts of the Spectrum (WARC92), MalagaTorremolinos, 1992, ISBN  xk9261046614. We intend to update the international table to reflect the Final Acts of the 1995 World Radiocommunication Conference in a separate rulemaking.  Additionally, we are removing international footnote  x{613 from the 157.45158.115 MHz band and footnote NG153 from the 849851 and 894896  x<MHz bands, which are bands to which these footnotes do not apply. With regard to the rule part  xkcross references, we are updating the title of Part 22 to Public Mobile (from Domestic Public  x>Land Mobile) in the 35.1935.69, 43.1943.69, 152152.255, 152.495152.855, 157.755162.0125,  xm454455, 459460, 470512, 824849, 869894, 928929, 931932 and 944960 MHz bands;  x]displaying the rule parts in the 173.2173.4 and 18501990 MHz bands in capital letters to  xindicate that the allocations in these bands are on a primary basis; updating the PCS rule part to  x Part 24 (from Part 99) in the 901902, 930931 and 940941 MHz bands; adding Part 22 to the  xM851866 MHz band, Parts 22 and 101 to the 932935 and 941942 MHz bands, and Part 101 in  xkthe 942944 MHz band; replacing Part 94 with Part 101 in the 928929, 944960 and 18501990  xLMHz bands; and deleting Satellite Communications (25) from the 450451 MHz band, Domestic  x Public Land Mobile (22) from the 929930 MHz band and Private Land Mobile (90) from the  x.931932 MHz band. Finally, we are revising the Government column in the 3030.56 MHz band  x1by displaying the fixed service as a primary not secondary allocation; correcting  x.typographical errors in the 4243.19 MHz band for columns 4 through 6; and adding footnotes  X-US116, US215, US268 and G2 to the Government column in the 928932 MHz band. P {OT-  \ԍxSee Manual of Regulations and Procedures for Federal Radio Frequency Management, September 1995 Edition, Chapter 4 at pages 35, 37 and 52. The 3030.56 MHz band is exclusive Government spectrum.   X- x D. Universal Service Obligations  X-  x"35. Background. In the Notice, we concluded that should we ultimately adopt the  xproposed rules, licensees would be permitted to provide fixed wireless local loop services on  x!spectrum allocated for CMRS services that in some respects could be similar to wireline  XP- xtelephone local exchange service.IQP {O$-ԍxNotice at  21.I We sought comment, therefore, on the extent to which any  x[of our universal service programs should be modified to encompass, or impose obligations on,  xCMRS providers that offer the equivalent of local exchange service. We also noted that it is the""Q,-(-(ZZz"  xCommission's preference to consider the universal service obligation issues raised in this  X-proceeding in our decisions in the universal service proceedings.IR {Ob-ԍxNotice at  21.I  X-  x#36. Subsequent to the release of the Notice, the Telecommunications Act of 1996 was  xenacted. The 1996 Act, among other things, amends the Communications Act to include a  xprovision regarding Universal Service, and establishes a FederalState Joint Board to recommend  Xx- xLchange to the Commission's universal service rules to implement the 1996 Act.NSxZ {O -ԍxSee 47 U.S.C.  254.N In March the  Xa- xCommission issued a Notice of Proposed Rule Making and Order Establishing Joint Board to  XL-implement the universal service provisions of the 1996 Act.TL {O -  /ԍxFederalState Joint Board on Universal Service, Notice of Proposed Rule Making and Order Establishing  {O -Joint Board, CC Docket No. 9645, FCC 9693 (rel. March 8, 1996).  X -  |x$37. Comments. Many parties agree with the Commission that these issues should be  X - xxaddressed in the ongoing Universal Service proceeding.UX H yO-   ԍ#X\  P6G;IP##C\  P6QIP#x360 Degrees Comments at 3, BellSouth Comments at 4, NTCA Comments at 4, Nextel Comments at 4,  xOmnipoint Comments at 9, PacTel Comments at 3, PCIA Comments at 1112, SBC Comments at 6, Western  yO-Wireless Comments at 9, US West Comments at 9, Sprint Corp Comments at 3.  Omnipoint and US West argue that the  X - x[complex universal service issues have not been fully explored in the Notice, and consideration  xof those issues in this proceeding will likely impede the swift regulatory changes that are  X - x>needed.V h  yO-ԍ#X\  P6G;IP##C\  P6QIP#xOmnipoint Comments at 9, US West Comments at 9. See also, Omnipoint Reply Comments at 12. PCIA notes that the Notice is linked to the universal service and subscribership  x=proceedings because it is intended to increase competition for the provision of local exchange  X-service.W  yOA-ԍ#X\  P6G;IP##C\  P6QIP#xPCIA Comments at 13.  Xj-  x%38. Discussion. We agree that it would be premature to address in this Report and Order  xwhether universal service requirements should be extended to CMRS providers offering fixed  X<- xjwireless service. It is also apparent both from our experience with universal service issues and  X%- xthe comments in response to the Notice that the public interest would be better served by allowing  xthe Joint Board to address the universal service issues raised in this proceeding. Thus, we defer  X- xdiscussion of the proposals discussed by commenters in response to the Notice for consideration  X-by the Joint Board in CC Docket No. 9645.  x " W,-(-(ZZ"  X-x E. Regulatory Treatment of Fixed Services x  X-  x&39. For the reasons discussed below, we conclude that further development of the record  xis needed to resolve the issue of how fixed services allowed by this Report and Order should be  X- xregulated. Therefore, we address this issue in the Further Notice of Proposed Rule Making below.  XJ-  IV. FURTHER NOTICE OF PROPOSED RULE MAKING ĐTP  X -  x'40. Background. In the Notice, we sought comment on how we should regulate any fixed  X - x=service offered by licensees on CMRS spectrum.X  {O -#X\  P6G;IP#э#C\  P6QIP#xNotice at  19. We noted that, for example, PCS providers  x intend to integrate mobile, fixed wireless, wireline, and cable facilities into seamless service  xofferings. We stated that we do not want to discourage development of such integrated networks  x by subjecting carriers to multiple layers of regulation, and therefore proposed to treat fixed  x[wireless services as an integral part of CMRS services offered by a CMRS provider, so long as  xLthe carrier otherwise uses CMRS spectrum to offer interconnected mobile service to the public  X}- xfor profit.Y}Z {O-#X\  P6G;IP#э#C\  P6QIP#xI#C\  P6QIP#d. at  20. We requested comment on that proposal and invited commenters to offer alternative proposals.  X8-  {x(41. In Section 332, Congress defined "commercial mobile service" as "any mobile service  x(as defined in section 3 [Section 153]) that is provided for profit and makes interconnected  xservice available (A) to the public or (B) to such classes of eligible users as to be effectively  X- xavailable to a substantial portion of the public as specified by regulation by the Commission."JZ yO-ԍx47 U.S.C.  332(d)(1).J  x/At the same time, Congress amended the definition of "mobile service" by adding two new  X- xclauses, designated as (B) and (C) which include a reference to PCS service.[| yO-   ԍxOmnibus Budget Reconciliation Act of 1993 (Budget Act), Pub. L. No. 10366, Title VI,  6002(b), 107 Stat. 312 (enacted August 10, 1993). "Mobile service"  xis defined in Section 153(27) as "radio communication service carried on between mobile stations  xor receivers and land stations, and by mobile stations communicating among themselves, and  xzincludes (A) both oneway and twoway radio communication services, (B) a mobile service  xiwhich provides a regularly interacting group of base, mobile, portable, and associated control and  xrelay stations (whether licensed on an individual, cooperative, or multiple basis) for private one xway or twoway land mobile radio communications by eligible users over designated areas of  x>operation, and (C) any service for which a license is required in a personal communications  xservice established pursuant to the proceeding entitled Amendment to the Commission's Rules" [,-(-(ZZy"  x=to Establish New Personal Communications Services (GEN Docket No. 90314; ET Docket No.  X-92100), or any successor proceeding."H\ yOb-ԍx47 U.S.C.  153(27).H  X-  Nx)42. Section 332 provides that CMRS providers are to be treated as common carriers, but  X- xallows the Commission authority to forbear from applying certain sections of Title II.]X yO-  ԍxSpecifically, the Commission may forbear from applying any section of Title II, except Sections 201, 202, and 208. 47 U.S.C.  332(c)(1)(A). In the  X- xkCMRS Second Report and Order, the Commission determined that it would be in the public  xinterest to forbear from imposing most Title II requirements on CMRS providers, including  Xa- xtariffing requirements. ^a yO -  /ԍxImplementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile  {O -Service, GN Docket No. 93252, Second Report and Order, 9 FCC Rcd 1411, 146393.  Section 332 also preempts state regulation of rates and entry for CMRS,  xNbut allows the states to petition the Commission for authority to regulate rates in limited  X3-circumstances._3  yO-  ԍxThe Commission must grant a State's petition for authority to regulate rates if the state can demonstrate that  x>"(i) market conditions with respect to such services fail to protect subscribers adequately from unjust and  x;unreasonable rates or rates that are unjustly or unreasonably discriminatory; or (ii) such market conditions exist and  xsuch service is a replacement for land line telephone exchange service for a substantial portion of the telephone land line exchange service within such State." 47 U.S.C.  332(c)(3).  X -  Nx*43.  Comments. Many commenters concur with the Commission's proposal to treat fixed  X - xLwireless service as an integral part of CMRS services.`Z  {OY-  ԍ#X\  P6G;IP##C\  P6QIP#xSee, e.g., GO Comments at 6, SBC Comments at 5; SMR Systems/Digital Comments at 3; Sprint Spectrum  xComments at 4; Telular Comments at 9; Western Wireless Comments at 4, US West Comments at 7; Sprint Corp. Comments at 3; AirTouch Reply Comments at 2; PCS PrimeCo Reply Comments at 4. RCC and Omnipoint contend that this  X - xiregulatory scheme is consistent with the framework established by the CMRS Second Report and  X - xOrder that all auxiliary services provided by mobile licensees be included in the definition of  X - xCMRS.a  yO:-ԍ#X\  P6G;IP##C\  P6QIP#xRCC Comments at 7, note 18, Omnipoint Reply Comments at 7, note 19. 360 Degrees maintains that the policy should apply to all CMRS providers equally,  xpursuant to the Budget Act, which, according to 360 Degrees, dictates that all CMRS providers  X- xshould have similar regulatory treatment.bl yO!-ԍ#X\  P6G;IP##C\  P6QIP#x360 Degrees Comments at 2. AT&T and GO argue that the prospect of complying  xwith a new regulatory scheme would also discourage providers from quickly altering the nature  XQ- xof their services to meet demand.cQ yO$-ԍ#X\  P6G;IP##C\  P6QIP#xAT&T Comments at 10, GO Comments at 7. GO further argues that, in order for PCS providers to offer"Qc,-(-(ZZ"  xa seamless package of services, both the mobile and fixed aspects of the service must receive  X-identical regulatory treatment.d yOb-ԍ#X\  P6G;IP##C\  P6QIP#xGO Comments at 7.  X-  x+44. Several parties also address the effect of the passage of the 1996 Act on the possible  X- x[regulation of fixed wireless services provided by CMRS providers. eX {O-   #X\  P6G;IP#э#C\  P6QIP#xThe 1996 Act was enacted on February 8, 1996, after the Notice was released but before comments were scheduled to be filed.  RCC notes that adoption  X- xof the proposals in the Notice is consistent with the directive in the 1996 Act to provide for a  Xx- xpro-competitive, deregulatory national policy framework for telecommunications.fx yO -ԍ#X\  P6G;IP##C\  P6QIP#xRCC Comments at 4. Omnipoint  xnotes that the 1996 Act specifically excludes CMRS providers from the definition of local  xyexchange carriers, indicating that Congress intended not to subject CMRS operators who want  xto compete in the local loop to the same regulatory treatment as wireline LECs until such time  X - xas CMRS operators displace a significant part of local wireline service.g B yO-#X\  P6G;IP#э#C\  P6QIP#xOmnipoint Reply Comments at 7, note 21. Ameritech, on the  xKother hand, argues that the inclusion of language in the definition of local exchange carrier giving  xthe Commission authority to classify CMRS providers as LECs means that, to the extent CMRS  xproviders provide wireless local loop, they should bear all the obligations placed on LECs under  X - x[the Act.h  yOC-ԍ#X\  P6G;IP##C\  P6QIP#xAmeritech Comments at 67. Worldcom agrees that if a CMRS provider is the providing fixed wireless local loop  X -services, it should fall within the definition of local exchange carrier.i b  yO-ԍ#X\  P6G;IP##C\  P6QIP#xWorldcom Comments at 8.  X{-  _x,45. Cole Raywid argues that the proposal in the Notice to clarify and broaden the  xpermissible use of CMRS providers' licenses to include fixed wireless services in no way affects  XO- xthe statutory prohibition against state and local rate and entry regulation of CMRS providers.jO  yO-ԍ#X\  P6G;IP##C\  P6QIP#xCole, Raywid Comments at 7.  xThe NARUC opposes the expansion of the definition of CMRS to include fixed wireless local  X!- xloop services.Ek!  yOT!-ԍxNARUC Comments at 2.E NARUC contends that the Commission's proposal would affect facilities  X - xKcurrently subject to State commission jurisdiction both directly and indirectly.l  {O#-ԍ#X\  P6G;IP##C\  P6QIP#xId. at 23. NARUC asserts  xthat allowing CMRS providers to offer fixed service would promote a "Federal policy that is not  X- xtechnology neutral and has the impact of deployment of one technology over another."om {O1'-ԍxUS West Reply Comments at 4, citing NARUC Comments at 4.o "6m,-(-(ZZ&"  x=NARUC argues that state regulation of CMRS and wireline services differs significantly; thus,  xif the Commission's proposals are adopted, the impact will be to favor a particular technology  X- x(wireless) for local access.n yOK-#X\  P6G;IP#э#C\  P6QIP#xNARUC Comments at 5. NARUC also argues that the Commission's proposed regulatory  xscheme contradicts prior decisions excluding fixed wireless services such as BETRS from the  X-definition of mobile services.oX {O-ԍ#X\  P6G;IP##C\  P6QIP#xId. at 4. x  Xv-  2x-46. Discussion. Many CMRS commenters urge the Commission to apply uniform  xregulatory treatment to all fixed and mobile services offered by carriers on CMRS spectrum. The  x.record suggests, however, that under the flexible service rules we adopt today there may be a  xvariety of different uses of fixed wireless technology by CMRS providers, some of which may  xraise distinct regulatory issues. For example, some carriers may choose to develop dualuse  xtechnology that is capable of being used either in a mobile or a fixed mode. Others may develop  x.fixed wireless local loop architecture to provide service to end users in residences and offices,  xbut combine the fixed wireless service with mobile service options available to the user when the  xLuser is outside the home or office. Other carriers may elect to use blocks of spectrum primarily  xor even solely for fixed interconnected services as a way of entering into direct competition with wireline local exchange carriers.  Xb-  x.47. Based on our review of the record in this proceeding, we believe it is premature to  xattempt a final comprehensive determination regarding the regulatory treatment of these various  xtypes of fixed services that may be offered by licensees. While some commenters argue that all  xKof the fixed offerings described above should be treated as sufficiently related to CMRS to justify  xuniform regulatory treatment, we believe that a uniform approach would be premature at this  xtime. Instead, we believe that the regulatory issues raised by this proceeding require further  xdevelopment of the record and more specific analysis related to the particular fixed service  xofferings that carriers develop. Therefore, we propose to refine the approach set forth in the  X- x<Notice by seeking comment on additional guidelines for determining when fixed wireless services may fall within the scope of CMRS regulation.  Xg-  x/48. At the outset, we emphasize that our decision to allow carriers to offer coprimary  xKfixed services on spectrum allocated for CMRS does not alter in any way our regulatory treatment  X9- x-of fixed services that have been provided by CMRS providers under our prior rules. In the CMRS  X$- xSecond Report and Order, we stated that ancillary, auxiliary, and incidental services offered by  xjCMRS providers fall within the statutory definition of mobile service, and are subject to CMRS  xregulation. We reaffirm that determination here. In our order today, however, we have  xbroadened the potential scope of fixed services that may be offered by CMRS providers. We  x[therefore seek further comment on the regulatory treatment of such fixed services that may not be considered ancillary, auxiliary or incidental to mobile service. ""o,-(-(ZZ!"Ԍ X-  x049. Several parties argue that because the definition of "mobile service" contains a clause  xreferencing PCS licenses, Congress intended that all service provided through a PCS license  X- xwould be treated as mobile.p {OK-ԍxSee, e.g., CTIA Comments at 1011, AT&T Comments at 9 n. 15, Airtouch Reply Comments at 3. According to Omnipoint, inclusion of the PCS clause means that  x.the Act, unlike FCC regulations, does not limit the amount of fixed service a PCS provider may  xjoffer, and the offering of fixed service by a PCS licensee does not change its status as a CMRS  X- x-provider.KqZ yO-ԍxOmnipoint Comments at 67.K AT&T and CTIA argue, further, that since one goal of Congress and the Commission  x-is regulatory parity for similarly situated CMRS providers, all services provided through a license  X_- xfor a CMRS service, not just a PCS license, come within the definition of "mobile service."r_ yO -  ԍx"With respect to PCS in particular, Congress has made clear that such services, whether they be fixed or  xmobile in nature, are to be defined as CMRS and regulated under Section 332. . . . Because of the federal mandate  x,to promote regulatory parity, 47 U.S.C.  332, the Commission must treat other CMRS in a similar fashion. To do  xotherwise might give PCS a competitive advantage and harm the development of other wireless services." AT&T  {O-Comments at 9 n. 15.  See also CTIA Comments at 67 n. 13.  xOne could also read the definition of "mobile service" to require the use of "mobile stations" and  xthe "and includes" language which precedes the description of the three enumerated services to  xymean that they are examples. In that case, a service provided with a PCS license would have to  xinclude the use of a "mobile station" to come within the definition of "mobile service" and  xconsequently be considered in the definition of "commercial mobile service." "Mobile station" is  x{defined in the Act as "a radiocommunication station capable of being moved and which  X - x.ordinarily does move."Hs  yO -ԍx47 U.S.C.  153(28).H We seek comment on these alternative statutory interpretations and  xZtheir regulatory consequences. Parties should submit support from the legislative history or prior  xZCommission rulings for or against the argument that the language "and includes" in the definition  x[of "mobile service" sets out examples of mobile services, rather than listing additional services  Xb-which come under the definition.tb,  {O?-ԍxSee, e.g., Sutherland, Statutory Construction, 5th Ed.,  47.1747.18 (1992).  X4-  x150. CTIA also argues that the Commission has substantial discretion under the Act to  xdefine "mobile services." CTIA states that this authority stems from the language in the PCS  X- xclause of the definition of "mobile service" that refers to "any successor proceeding."u   yOu!-  ԍx". . . (C) any service for which a license is required in a personal communications service established  xpursuant to the proceeding entitled 'Amendment to the Commission's Rules to Establish New Personal  xiCommunications Services' (GEN Docket No. 90314; ET Docket No. 92100), or any successor proceeding." 47 U.S.C.  153(27)(C).  xAccording to CTIA, that language allows the Commission to establish alternative definitions of"u,-(-(ZZ"  X- xL"mobile service" in successor proceedings.Vv\ {Oy-  ԍxCTIA Comments at 712, CTIA Reply Comments at 45. See also NYNEX Comments at 9 ("As a technical  {OC- xmatter, it could be argued that PCS service is 'CMRS' whether it is fixed or not, if the Commission says so." citing 47 U.S.C. 153(27)(C)).V We seek comment on the breadth and scope of Commission authority under the PCS clause and the "any successor proceeding" language.  X-  x251. As noted above, in the CMRS Second Report and Order we found that the definition  X- xof "mobile service" includes "all auxiliary services provided by mobile service licensees."w {OC -ԍxNotice at  3 citing CMRS Second Report and Order, 9 FCC Rcd at 142425. We  xseek comment on what precedential value, if any, we should give to our treatment of auxiliary,  xancillary, and incidental services as CMRS for regulatory purposes when determining how to  xregulate other fixed wireless services provided by CMRS providers. For example, because we  xconsider a fixed service that is ancillary to a mobile service to be CMRS, what implications should that have for how we should treat a wholly fixed service that may use no mobile stations.  X -  x352. Some parties have also argued that because these fixed wireless services would be  xlprovided by CMRS providers in spectrum that has been allocated for CMRS, the service  X - x=providers must therefore be regulated as CMRS.Yx ~ yO-ԍxGCI Comments at 3, Nextel Comments at 3.Y We disagree. The regulatory structure for  xproviders of the primary service to which the spectrum is allocated does not necessarily dictate  xxthe type of regulation to which every service provider in that same band will be subject regardless  X- xof the particular attributes of that service. A pertinent example is BETRS.y {OQ-  ԍxSee Basic Exchange Telecommunications Radio Service, CC Docket 86495, Report and Order, 3 FCC Rcd 214 (1988). While BETRS is  xjprovided in a spectrum band allocated to Public Land Mobile Service, we have determined that  xBETRS is a fixed service, rather than a mobile service, and therefore BETRS providers are not  XM- xysubject to CMRS regulation under Section 332.zMh  {Of-  zԍxImplementation of Sections 3(n) and 332 of the Communications Act, GEN Docket No. 93252, Second  {O0-Report and Order, 9 FCC Rcd 1411, 1425 (1994). Similarly, private service licensees in the 220  xand 800 MHz SMR bands are not subject to CMRS regulation. Likewise, we do not intend to  xbase our decision here merely on the classification of the majority of users of the spectrum in which the fixed service in question is provided.  X-  ?x453. We believe that, ultimately, the regulatory issues on which we seek comment herein  xmay require resolution on a casebybase basis. We seek comment on this conclusion, including  xwhether we may be able to establish a uniform approach for determining the regulatory status of  xfixed services offered on CMRS spectrum. To provide a framework for a casebycase analysis,  xwe propose to establish a rebuttable presumption that any wireless service provided under a  xCMRS provider's license would be considered to come within the definition of CMRS and  xconsequently regulated as CMRS. Based on the record in this proceeding, we believe this to be"P z,-(-(ZZ"  xa reasonable presumption. Most of the fixed wireless service applications which commenters  xhave discussed in the record would be provided in conjunction with a traditional CMRS services  X-such as cellular or paging.g{ {OK-ԍxSee AT&T Comments at 4; Celpage Comments at 45.g  X-  0x554. Under our proposed approach, the Commission would allow any interested party to  xchallenge this presumption regarding a particular service offered by a CMRS provider. If a party  xKcould demonstrate that the service provider in question does not meet the definition of CMRS for  xa particular offering, we would not regulate that particular offering as CMRS. We seek comment  xon this approach and what types of evidence the Commission should evaluate when considering  xa challenge to a presumption that a fixed wireless service provided by a CMRS provider should  xbe regulated as CMRS. Possible factors may include: the relative mobility of mobile stations  X - x=used in conjunction with the fixed service; whether the fixed service is part of a larger package  xwhich includes mobile services or is offered alone; the size of the service area over which the  xfixed wireless service is provided; the amount of mobile versus fixed traffic over the wireless  xsystem; whether the fixed service is offered over a discrete block of spectrum separate from the  xspectrum used for mobile services; the degree to which fixed and mobile services are integrated;  x{and whether customers perceive the service to be a fixed service. Part of any analysis of  x<customer perception may also include consideration of how the service is marketed by the CMRS provider to potential customers.  X4-  x655. We seek comment on the appropriateness of using these factors or other types of  xevidence that may be presented to rebut this presumption. We also seek comment on the extent  xto which services provided under separate licenses or by separate entities may be relevant to the  xregulatory status of a particular fixed service offering provided under a given license. For  x<example, should we consider only the services provided under a particular license or consider the  x=services provided by a common licensee under multiple licenses, e.g., a licensee who provides  xfixed service under its PCS license and mobile service under a cellular license in the same  xmarket. Similarly, in instances where fixed and mobile services are provided by different  xcorporate affiliates, should we look at each affiliate's service separately or at the services  xprovided by the corporation as a whole? Another possible scenario would be where a CMRS  x=provider provides fixed service under its own license and has a joint marketing arrangement or  xresale agreement with another CMRS provider in that market. How should we consider such  x-arrangements in making our analysis under this presumption? We seek comment on our proposal  xfor regulating fixed wireless service provided by a CMRS provider and we seek alternative suggestions for presumptive regulatory classifications.  X -  x756. Some parties have advocated that we regulate any fixed wireless service provided by  xa CMRS provider as CMRS until such time that the service constitutes a substitute for land line  X"- xtelephone exchange service in a substantial portion of a state.|"Z {O&-ԍxSee, e.g., AT&T Comments at 12, BellSouth Comments at 4, GCI Reply Comments at 3. Under this approach a state""|,-(-(ZZ!"  xwould have to petition the Commission under Section 332(c)(3), and the Commission would have  xto grant such a petition, before a CMRS provider's fixed wireless service would be subject to  x.state regulation. We seek comment on this approach. We also seek comment on what federal  xregulation should be imposed on a CMRS provider's offering of fixed wireless service if we find  xthat it does not come within the purview of CMRS. To the extent that there are interstate  xcommon carrier services, such services would be subject to regulation under Title II; if so are  Xv-there any Title II regulations from which such services should be exempt?N}v {O-ԍxSee 47 U.S.C.  160.N  XH-  {x857. We recognize that we are addressing a related issue in the context of our proceeding  X1- x.on implementation of Section 251 of the Communications Act, as amended by the 1996 Act*~1Z {O< -  zԍxImplementation of the Local Competition Provisions in the Telecommunications Act of 1996, Notice of  {O -Proposed Rule Making,  195, CC Docket 9698, FCC 96182 (rel. April 19, 1996) ("Section 251 Notice").*  X - x[ԩ i.e., in what circumstances, if any, a CMRS provider should be regulated as a "local exchange  X - xcarrier" under the Act.B  yOl-  {ԍxThe Act defines "local exchange carrier" as "any person that is engaged in the provision of telephone  xexchange service or exchange access." 47 U.S.C.  153(26). The definition goes on to state that "[s]uch term does  xnot include a person insofar as such person is engaged in the provision of commercial mobile service under section  xh332(c), except to the extent that the Commission finds that such service should be included in the definition of such  {O- xterm." We have sought comment in the Section 251 Notice on whether, and to what extent, CMRS providers should  xZbe classified as local exchange carriers and the factors we should use to make such a determination. We have also  xsought comment on whether a CMRS provider may be classified as a local exchange carrier for some purposes but  yO-not others. Herein we are concerned with whether service providers should be  xregulated as CMRS if they provide fixed services. While we will review and consider the  x<comments submitted in the Section 251 proceeding, we do not believe that resolution of the issue  xpresented in the Section 251 proceeding resolves the issues presented here. For example, even  xif we were to find that a CMRS provider could be considered a local exchange carrier in terms  x of the requirements in Section 251, we tentatively conclude that it could still be considered  xengaged in the provision of CMRS under Section 332 and therefore exempt from states'  xLregulation of intrastate rates. We seek comment on this tentative conclusion and whether the  xother obligations imposed on LECs have a direct relationship to the rates charged by CMRS providers, and thus may impact on the rate regulation scheme set out in Section 332.  X-   V. CONCLUSION ă x  X-  x958. We believe that the rules and proposals set forth for the provision of fixed services  X- xiby CMRS providers in this First Report and Order and Further Notice of Proposed Rule Making  xwill promote the public interest goals set forth by Congress. We conclude that the increased  xflexibility we are facilitating here will increase quality service and the availability of new technologies to consumers. "i ,-(-(ZZ"Ԍ X-T VI. PROCEDURAL MATTERS ĐTP  X-x A. Regulatory Flexibility Act   X-  x:59. Appendix D contains a Final Regulatory Flexibility Analysis with respect to the First  X- xReport and Order and an Initial Regulatory Flexibility Analysis with respect to the Further Notice  Xz- xof Proposed Rule Making.  As required by Section 603 of the Regulatory Flexibility Act, the  xCommission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the expected  ximpact on small entities of the proposals suggested in this document. Written public comments  xare requested on the IRFA. We also seek comment on the number of CMRS entities affected by  xthe proposed rules are small businesses, and request that commenters identify whether they  xthemselves are small businesses. These comments must be filed in accordance with the same  X - xfiling deadlines as comments on the rest of the Further Notice of Proposed Rule Making, but they  xmust have a separate and distinct heading designating them as responses to the Initial Regulatory  X - xFlexibility Analysis. The Secretary shall send a copy of this First Report and Order and Further  X - xNotice of Proposed Rule Making, including the Initial Regulatory Flexibility Analysis, to the  xChief Counsel for Advocacy of the Small Business Administration in accordance with paragraph  X- x603(a) of the Regulatory Flexibility Act. Pub. L. No. 96354, 94 Stat. 1164, 5 U.S.C.  601 et.  Xp-seq. (1981).  XD-x B. Ex Parte Rules NonRestricted Proceeding  X-  Px;60. This is a nonrestricted notice and comment rule making proceeding. Ex parte  xpresentations are permitted except during the Sunshine Agenda period, provided they are  X- xdisclosed as provided in the Commission's rules. See generally 47 C.F.R.  1.1202, 1.1203, and 1.1206(a).  X-x C. Initial Paperwork Reduction Act of 1995 Analysis x  Xw-  x<61. This First Report and Order and Further Notice of Proposed Rule Making do not  Xb-contain either a proposed or modified information collection.  X4-x D. Comment Dates  X-  2x=62. Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the  xkCommission's rules, 47 C.F.R.  1.415 and 1.419, interested parties may file comments on or  X - xbefore [90 days after Federal Register publication] , and reply comments on or before [120  X!- xJdays after Federal Register publication] . To file formally in this proceeding, you must file an  xoriginal and four copies of all comments, reply comments, and supporting comments. If you  xwant each Commissioner to receive a personal copy of your comments, you must file an original  xplus nine copies. You should send comments and reply comments to the Office of the Secretary,  xFederal Communications Commission, Washington, D.C. 20554. Comments and reply comments  xwill be available for public inspection during regular business hours in the FCC Reference Center"N&,-(-(ZZ$"  xof the Federal Communications Commission, Room 239, 1919 M Street, N.W., Washington, D.C. 20554.   mx>63. As required by Section 603 of the Regulatory Flexibility Act, the Commission has  xprepared an Initial Regulatory Flexibility Analysis of the expected impact on small entities of the  X- xproposals suggested in the Further Notice of Proposed Rule Making. Written public comments  xare requested on the IRFA. These comments must be filed in accordance with the same filing  Xa- xdeadlines as comments on the remainder of the Further Notice of Proposed Rule Making, but they  xmust have a separate and distinct heading designating them as responses to the IRFA. The  X5- xxSecretary shall send a copy of this Further Notice of Proposed Rule Making, including the IRFA,  xthe Chief Counsel for Advocacy of the Small Business Administration in accordance with  xparagraph 603(a) of the Regulatory Flexibility Act. Pub. L. No. 96354, 94 Stat. 1164, 5 U.S.C.  X - 601 et. seq. (1981).  X -x E. Ordering Clauses   Px?64. Accordingly, IT IS ORDERED that pursuant to Sections 4(i), 4(j), 7(a), 303(b),  x/303(f), 303(g), 303(r), 332(a), and 332(c) of the Communications Act of 1934, as amended, 47  xU.S.C.  154(i), 154(j), 157(a), 303(b), 303(f), 303(g), 303(r), 332(a), and 332(c) the rules and  XS- xipolicies set forth in the First Report and Order and Further Notice of Proposed Rule Making are  xadopted, and Parts 2, 22, 24, and 90 of the Commission's Rules ARE AMENDED as specified in Appendix C.   x@65. The rule changes made herein WILL BECOME EFFECTIVE 60 days after publication in the Federal Register.  X-x F. Contacts for Information   xA66. For further information concerning this proceeding, contact David Krech at (202)4180620 (Commercial Wireless Division, Wireless Telecommunications Bureau). x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton x` `  hh@Acting  l Secretary "",-(-(ZZf!"  X-) APPENDIX A ĐTP COMMENTS 1. 360 Communications Company (360 Degrees) 2. Ad Hoc Rural Cellular Coalition (RCC) 3. AirTouch Communications, Inc. & US West New Vector Group, Inc. (AirTouch/New Vector) 4. Alaska Telephone Association (ATA) 5. Alliance of LEC-Affiliated Wireless Services Providers (Alliance) 6. American Mobile Telecommunications Association, Inc. (AMTA) 7. American Petroleum Institute (API) 8. Ameritech, Inc. (Ameritech) 9. AMSC Subsidiary Corporation (AMSC) 10. AT&T Corporation (AT&T) 11. Bell Atlantic (Bell Atlantic) 12. Bell Atlantic NYNEX Mobile, Inc. (BANM) 13. Bell South Corporation (BellSouth) 14. Cellular Telecommunications Industry Association (CTIA) 15. Celpage, Inc. (Celpage) 16. Century Cellunet, Inc. (Century) 17. Cole, Raywid & Braverman (Cole, Raywid) 18. COMAV and The Telemarc Group (COMAV/Telemarc) 19. Comcast Corporation (Comcast) 20. The Commercial Internet Exchange Association (CIX) 21. Fred Daniel d/b/a Orion Telecom (Orion) 22. DSC Communications Corporation (DSC) 23. Frontier Corporation (Frontier) 24. GO Communications (GO) 25. GTE Service Corporation (GTE) 26. InterDigital Communications Corporation (InterDigital) 27. Motorola, Inc. (Motorola) 28. National Association of Regulatory Utility Commissioners (NARUC) 29. National Telephone Cooperative Association (NTCA) 30. The New York State Department of Public Service (NYDPS) 31. Nextel Communications, Inc. (Nextel) 32. Northern Telecom, Inc. (Nortel) 33. The NYNEX Companies (NYNEX) 34. Omnipoint Corporation (Omnipoint) 35. Organization for the Protection & Advancement of Small Telephone Companies (OPASTCO) 36. Pacific Communication Sciences, Inc. (PCSI) 37. Pacific Telesis Group (PacTel) 38. PACS Providers Forum (PPF)"#',-(-(ZZP("Ԍ39. The Personal Communications Industry Association (PCIA) 40. PCS One, Inc. (PCS One) 41. The Rural Cellular Association (RCA) 42. SBC Communications, Inc. (SBC) 43. SMR Systems, Inc. & Digital Radio, L.P. (SMR Systems /Digital) 44. Sprint Corporation ("Sprint Corp.") 45. Sprint Spectrum (Sprint Spectrum) 46. SR Telecom, Inc. (SR Telecom) 47. Telular Corporation (Telular) 48. US West Communications (US West) 49. UTC Communications (UTC) 50. Western Wireless Corporation (Western Wireless) 51. WinStar Communications, Inc. (WinStar) 52. Worldcom, Inc. d/b/a LDDS (Worldcom) " ,-(-(ZZ"  X0'c APPENDIX B T  X0TPREPLY COMMENTS ĐTP 1. AirTouch Communications, Inc. (AirTouch) 2. America's Carriers Telecommunication Association (ACTA) 3. American Petroleum Institute (API) 4. AMSC Subsidiary Corporation (AMSC) 5. AT&T Corporation (AT&T) 6. BellSouth Corporation (BellSouth) 7. Cellular Telecommunications Industry Association (CTIA) 8. Comcast Corporation (Comcast) 9. Cox Enterprises, Inc. (Cox) 10. Frontier Corporation (Frontier) 11. General Communication, Inc. (GCI) 12. National Association of Regulatory Utility Commissioners (NARUC) 13. Nextel Communications, Inc. (Nextel) 14. Northern Telecom, Inc. (Nortel) 15. Omnipoint Corporation (Omnipoint) 16. Personal Communications Industry Association (PCIA) 17. PCS PrimeCo, L.P. (PrimeCo) 18. SBC Communications, Inc. (SBC) 19. The Southern Company (Southern) 20. SR Telecom, Inc. (SR Telecom) 21. Telecommunications Industry Association (TIA) 22. US West, Inc. (US West) ",-(-(ZZ`"  X0 #XP P+XP# v #XP P+XP#APPENDIX C FINAL RULES ĐTP Part 2 of title 47 of the Code #XP P+XP#of Federal Regulations is amended as follows:  X0X` hp x (#%'0*,.8135@8: ԍsSee 47 C.F.R.  24.320(b), 24.720(b).c With respect to 800 MHz and 900 MHz SMR services, the  %`Commission has a twotiered definition of small business: (a) "very small businesses" are firms  %who have gross revenues of not more than $3 million in each of the preceding three calendar  %` years; and (b) "small businesses" are firms who have annual gross revenues of not more than $15  X 0 % million in the each of the preceding three years.` Q {Ot ԍsSee 47 C.F.R.  90.814(b)(i) and (ii).` With respect to commercial 220 MHz services,  %the Commission has proposed a twotiered analysis: (1) for EA licensees, a firm with average  %annual gross revenues of not more than $6 million for the preceding three years and (2) for  %Pregional and nationwide licensees, a firm with average annual gross revenues of not more than  X}0$15 million for the preceding 3 years.^}|Q {O  0PԍsSee In the Matter of Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220 {Ot   @222 MHz Band by the Private Land Mobile Radio Service, Second Memorandum Opinion and Order and Third  {O> Notice of Proposed Rule Making, GN Docket 93252, 10 FCC Rcd 188 (1995)  XO0 @# We seek comment on our use of these definitions in this context. Additionally, we request  %`commenters to identify whether they are a "small business" under this definition. For  %@commenters that are a subsidiary of another entity, we seek this information for both the subsidiary and the parent corporation or entity.  X0 @#"  F. Significant Alternatives Minimizing the Impact on Small Entities Consistent with the  X0Stated Objectives (#  X0 @#In the Further Notice of Proposed Rule Making the Commission proposes to establish a  % rebuttable presumption that any wireless service provided under a CMRS provider's license would  %be considered to come within the definition of CMRS and be regulated as CMRS. The  % Commission seeks comment on this approach and what types of evidence the Commission should  % evaluate when considering a challenge to such a presumption. Other alternatives suggested in the  X&0 %@comment to the Notice of Proposed Rule Making include regulating any fixed wireless service  %provided by a CMRS provider as CMRS until such time that the service constitutes a substitute",,-(-(ZZp"  %for land line telephone exchange service in a substantial portion of a state. We seek comment  %on that approach and any additional significant alternatives presented in the comments also will  %be considered. If the fixed wireless service provided by a CMRS provider, including small  %@business entities, is not regulated as CMRS, that service may be subject to state regulation of  %`entry and rates. We also seek comment on what Federal regulation should be imposed on a  %CMRS provider's offering of fixed wireless service if that service does not come within the  %Ppurview of CMRS. We also seek comment on what impact each alternative may have on small business entities.  X10 G.Legal Basis  @#0The proposed action is authorized under Sections 4(i), 4(j), 7(a), 303(b), 303(f), 303(g),  %303(r), 332(a), and 332(c) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), 157(a), 303(b), 303(f), 303(g), 303(r), 332(a), and 332(c).  X 0 H.IRFA Comments  @#@We request written public comment on the foregoing Initial Regulatory Flexibility Analysis.  %P Comments must have a separate and distinct heading designating them as responses to the IRFA  XK0 %and must be filed by the deadlines provided in paragraphs 60 and 61 of the First Report and  X60Order and Further Notice of Proposed Rule Making.