[Federal Register Volume 78, Number 103 (Wednesday, May 29, 2013)]
[Rules and Regulations]
[Pages 32169-32179]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12748]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 20

[PS Docket No. 10-255 and PS Docket No. 11-153; FCC 13-64]
RIN 3060-AJ60


Facilitating the Deployment of Text-to-911 and Other Next 
Generation 911 Applications

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission requires all commercial 
mobile radio service (CMRS) providers and providers of interconnected 
text messaging services (i.e., all providers of software applications 
that enable a consumer to send text messages to all or substantially 
all text-capable U.S. telephone numbers and receive text messages from 
the same) to provide an automatic ``bounce-back'' text message where a 
consumer attempts to send a text message to 911 in a location where 
text-to-911 is not available. The rules are adopted with the goal of 
reducing the risk of individuals sending text messages to 911 during an 
emergency and mistakenly believing that 911 authorities had received 
it, particularly during the transition to Next Generation 911 (NG911), 
when text-to-911 will be available in some areas sooner than others and 
may be supported by certain service providers but not by others.

DATES: This rule is effective June 28, 2013.

FOR FURTHER INFORMATION CONTACT: Timothy May, Federal Communications 
Commission, Public Safety and Homeland Security Bureau, 445 12th Street 
SW., Room 7-A727, Washington, DC 20554. Telephone: (202) 418-1463, 
email: timothy.may@fcc.gov.

SUPPLEMENTARY INFORMATION: In this Report & Order (R&O), FCC 13-64, 
adopted May 8, 2013, and released May 17, 2013, the Commission requires 
all CMRS providers and providers of interconnected text messaging 
services (i.e., all providers of software applications that enable a 
consumer to send text messages to all or substantially all text-capable 
U.S. telephone numbers and receive text messages from the same) 
(collectively, ``covered text providers'') to provide an automatic 
``bounce-back'' text message in situations where a consumer attempts to 
send a text message to 911 in a location where text-to-911 is not 
available. The rules the Commission adopts will substantially reduce 
the risk of a person sending a text message to 911 in an emergency and 
mistakenly believing that 911 authorities have received it. Instead, 
the text sender will receive an immediate response that text-to-911 is 
not supported along with direction to use another means to contact 
emergency services, e.g., place a voice call to 911.
    Requiring all covered text providers to implement a bounce-back 
mechanism is particularly important because while deployment of text-
to-911 has begun, the transition is still in the very early stages and 
will not be uniform. During the transition, text-to-911 will be 
available in certain geographic areas sooner than it is available in 
others and may be supported by certain service providers but not by 
others. At the same time, as text-to-911 becomes more widely available, 
it is likely to generate increased consumer expectations as to its 
availability, which makes it increasingly important for consumers to be 
made aware when it is not available in an emergency.
    The Commission finds that it is technically feasible for all 
covered text providers to provide automatic bounce-

[[Page 32170]]

back messages. The record in this proceeding indicates that some 
service providers already send an automatic bounce-back message to 
their subscribers when a subscriber attempts to send a text to 911. In 
addition, the four largest CMRS providers--AT&T, Sprint Nextel, T-
Mobile, and Verizon--have voluntarily committed to provide bounce-back 
messaging capability throughout their networks by June 30, 2013. While 
the Commission finds that it is technically and economically feasible 
for all covered text providers to implement this capability quickly, 
the Commission recognizes that not all providers may be able to do so 
by the June 30, 2013 date to which the four major carriers are 
committed. Therefore, the Commission establishes September 30, 2013 as 
the deadline for all covered text providers to implement the bounce-
back capability required by this R&O. However, the Commission 
encourages covered text providers to implement bounce-back message 
capabilities as soon as possible in order to deal expeditiously with 
the existing consumer confusion about the availability of text-to-911. 
Although this new requirement will impose additional costs on some of 
the covered text providers, the Commission has determined that these 
costs are small and likely will be far exceeded by the public benefits 
of substantially reducing the risk of persons sending a text message to 
911 in an emergency and mistakenly believing that 911 authorities have 
received it.
    In addition to all CMRS providers, the Commission extends the 
bounce-back requirements adopted in the R&O to all interconnected text 
messaging providers. The Commission defines interconnected text 
providers as those providers that enable a consumer to send text 
messages to all or substantially all text-capable U.S. telephone 
numbers and receive text messages from the same. Such providers of 
interconnected text messaging service include providers that enable the 
transmission of covered messages over their own networks or facilities 
(e.g., CMRS licensees), as well as third-party or over-the-top (OTT) 
providers that enable the transmission of covered texts over another 
providers' network or facilities, including through the use of 
applications downloaded on mobile phones. For interconnected text 
applications on the market prior to the adoption of the R&O, 
interconnected text providers must make an update available by the 
September 30, 2013 implementation date. For future applications not on 
the market as of the date of the adoption of this R&O, interconnected 
text providers must incorporate a bounce-back message capability into 
their initial programming.
    The Commission affirms that it is extending this provision only to 
interconnected text message applications as defined in the R&O, and not 
to non-interconnected IP-based messaging applications that support 
communication with a defined set of users of compatible applications 
but that do not support general communication with text-capable 
telephone numbers. Additionally, the Commission clarifies that the 
rules adopted in the R&O do not apply to voice-only service providers.
    For clarity, the Commission states that the service must be capable 
of reaching ``all or substantially all'' text-capable U.S. telephone 
numbers and removing the reference to mobile numbers, since the North 
American Numbering Plan does not make distinctions between numbers in 
the plan. The Commission also affirms that the definition of 
interconnected text does not extend to text messages that are directed 
by IP-based messaging applications that support communication with a 
defined set of users of compatible applications but that do not support 
general communication with all or substantially all text-capable 
telephone numbers.
    The Commission adopts its proposal with certain modifications to 
address concerns raised by commenters to the FNPRM.\1\ In general, the 
R&O requires all covered text providers (i.e., both CMRS providers and 
interconnected text providers) to provide a bounce-back message when a 
consumer attempts to send a text message to a PSAP by means of the 
three-digit short code ``911'' and the covered text provider cannot 
deliver the text because (1) the consumer is located in an area where 
text-to-911 is not available, or (2) the covered text provider either 
does not support text-to-911 generally or does not support it in the 
particular area at the time of the consumer's attempted text.
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    \1\ In the Matter of Facilitating the Deployment of Text-to-911 
and Other Next Generation 911 Applications Framework for Next 
Generation 911 Deployment, PS Docket No. 11-153, PS Docket No. 10-
255, Further Notice of Proposed Rulemaking, 27 FCC Rcd 15659, 78 FR 
1799 (2012) (FNPRM).
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    The first scenario addresses the situation where the PSAP serving 
the consumer's geographic area has not yet implemented text-to-911 
capability. The Commission includes the second scenario to address 
instances where a covered text provider does not support text-to-911, 
even in areas where the PSAP has implemented text-to-911 capability. 
This is necessary because implementation of text-to-911 by covered text 
providers will not be uniform across the nation or within any given 
area. For example, most of the text-to-911 trials and deployments to 
date have involved PSAPs only receiving texts from a single carrier. In 
those situations, consumers of other carriers that are not yet 
supporting the PSAP's trial or deployment will be unable to send text 
messages to 911 for some period of time. Therefore, the Commission 
requires these carriers to provide a bounce-back message to consumers--
even though the PSAP is making text-to-911 ``available'' in the area.
    The Commission also notes that the rule it adopts today requires 
all covered text providers to implement bounce-back capability even 
though some providers contend that they cannot and should not be 
required to support text-to-911. The Commission has not yet decided the 
issue of whether all covered text providers should be required to 
support text-to-911 as proposed in the FNPRM. That issue remains 
pending in this proceeding, and the Commission does not prejudge it 
here. However, regardless of whether all covered text providers are 
eventually required to support text-to-911, the fact that they provide 
the ability to text to telephone numbers generally is likely to lead 
some consumers to assume that they also have text-to-911 capability. 
This could further lead consumers to put themselves at risk by 
attempting to send emergency text messages over such applications. The 
Commission therefore concludes that to prevent consumer confusion and 
protect life and safety in such situations, the bounce-back requirement 
should apply to all covered text providers that do not support text-to-
911 services.
    As proposed in the FNPRM, the Commission requires covered text 
providers to provide bounce-back messages only in those cases where the 
provider (or the provider's text-to-911 vendor) has direct control over 
the transmission of the text message.\2\ The Commission does not 
require that a bounce-back be provided in every instance where a 
confirmation of delivery is not received by the text provider, because 
this may include circumstances outside the text

[[Page 32171]]

provider's control. However, the Commission agrees that a bounce-back 
message should be provided when the text provider cannot determine the 
PSAP to which the text should be routed.
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    \2\ In the case of a preinstalled or downloadable interconnected 
text application, the Commission defines the application provider as 
having ``control'' for purposes of the bounce-back requirement. 
However, if the user or a third party modifies or manipulates the 
application after it is installed or downloaded so that it no longer 
supports bounce-back, the provider will be presumed not to have 
control.
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    The Commission further clarifies that the obligation of an 
interconnected text provider with respect to providing an automatic 
bounce-back message may differ depending on whether the application 
uses an IP-based network or a CMRS provider's underlying SMS network to 
deliver text messages to text-capable telephone numbers. Some 
interconnected text applications use IP-based transmissions to route 
text messages to a server, which then converts the message to SMS if 
necessary for delivery to the destination number.\3\ In such cases, the 
interconnected text service provider is responsible for delivering an 
application-based automatic bounce-back message to consumers if and 
when text-to-911 is unavailable. Other interconnected text applications 
are configured to transmit text messages in SMS format directly over 
the SMS network of the consumer's underlying CMRS provider, which will 
result in the application user receiving a bounce-back message from the 
CMRS provider when text-to-911 is not available.\4\ In these cases, 
where the text message defaults to the underlying CMRS provider's 
network, the interconnected text provider satisfies its consumer 
notification obligation so long as it does not prevent or inhibit the 
CMRS provider's automatic bounce-back message from being delivered to 
the application user.
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    \3\ For example, TextMe (go-text.me/) and Heywire 
(www.heywire.com).
    \4\ For example, Apple Messages (www.apple.com/ios/messages/).
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    The Commission also requires covered text providers that are 
delivering texts to PSAPs that are supporting text-to-911 to provide a 
mechanism for the PSAP to request temporary suspension of text for any 
reason, including but not limited to network congestion, call-taker 
overload, PSAP failure, or security breach.\5\ In those circumstances, 
the covered text provider must provide a bounce-back message to any 
consumer attempting to send a text to 911 in the area covered by the 
temporary suspension. Covered text providers must also provide a 
mechanism to allow PSAPs to resume text-to-911 service after such 
temporary suspension. The Commission encourages carriers, 
interconnected text messaging providers and PSAPs to establish standard 
protocols and interfaces for triggering these mechanisms. The 
Commission also emphasizes that the bounce-back requirement will only 
apply where the PSAP requests the temporary shutdown using a 
notification mechanism established by the provider or the provider's 
vendor for this purpose. The Commission encourages PSAPs and covered 
text providers to work together when establishing temporary shutdown 
mechanisms, so that both PSAPs and providers are clearly apprised of 
their respective roles and have established procedures in place for 
establishing such temporary shutdowns.
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    \5\ See, e.g., FNPRM, 27 FCC Rcd at 15670 para., 32 & n.70 
(proposing and seeking comment on whether an automatic bounce-back 
notification should be provided when, inter alia, a PSAP is unable 
to accept texts to 911, including circumstances where the PSAP may 
not be able to handle all incoming text messages, and discussing the 
temporary blocking of messages and sending of return bounce-back 
messages).
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    For the reasons of public safety and public awareness cited above, 
the Commission does not find it appropriate to adopt any form of 
blanket exemption of the September 30, 2013 requirement for CMRS 
providers and interconnected text messaging providers that believe they 
will not be able to meet the deadline. Any covered providers who are 
unable to implement the bounce-back requirement by September 30, 2013 
should file a request for waiver. Waivers or exemptions from these 
requirements are best suited to a case-by-case analysis under the 
waiver standard, where the facts and circumstances of each individual 
case can be determined on its own merits.\6\ Notwithstanding the 
availability of the waiver process, we emphasize the important public 
safety purpose of this requirement and our expectation that providers 
will implement bounce-back messaging by the deadline.
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    \6\ The Commission may, on its own motion, waive its rules for 
good cause shown. 47 CFR 1.3. See also Northeast Cellular Telephone 
Co., L.P. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (``FCC has 
authority to waive its rules if there is `good cause' to do so.''). 
The Commission may also exercise its discretion to waive a rule 
where particular facts would make strict compliance inconsistent 
with the public interest, and grant of a waiver would not undermine 
the policy served by the rule. See WAIT Radio v. FCC, 418 F.2d 1153, 
1159 (D.C. Cir. 1969), aff'd, 459 F.2d 1203 (D.C. Cir. 1972), cert. 
denied, 409 U.S. 1027 (1972).
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    The Commission requires all covered text providers to provide an 
automatic bounce-back message that includes, at a minimum, two 
essential points of information: (1) That text-to-911 is not available; 
and (2) that the consumer should try to contact 911 using another 
means. As an example, a sufficient bounce-back message that satisfies 
these criteria could say: There is no text-to-911 service available. 
Make a voice call to 911 or use another means to contact emergency 
services. The Commission declines to require covered text providers to 
use specific wording.\7\ The Commission believes its approach affords 
covered text providers with the necessary guidance and flexibility to 
create bounce-back messages that are understood by their particular 
consumer base. In addition, the approach enables covered text providers 
to continue to use the messages they presently have in operation, to 
the extent that they conform to these criteria.\8\ This approach also 
provides sufficient uniformity in automatic bounce-back messages to 
allow for consistent training and public education materials.
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    \7\ The Commission notes that its action does not preclude the 
voluntary adoption of a common automatic bounce-back message by 
covered text providers, developed by industry in coordination with 
public safety, consumer groups, disability rights advocates, and 
other interested parties. The Commission encourages close and 
continued coordination among all relevant parties to ensure the 
successful implementation of the automatic bounce-back message 
requirement.
    \8\ Examples of current bounce-back messages that would satisfy 
our criteria include those offered by Heywire (``Heywire does not 
support Enhanced 911. If you are in need of emergency services, 
please dial 911 on your landline or mobile phone'') and Verizon 
(``Please make a voice call to 911. There is no text service to 911 
available at this time'').
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    Additionally, the Commission requires all CMRS providers to provide 
an automatic bounce-back message when a consumer roaming on a network 
initiates a text-to-911 in an area where text-to-911 service is not 
available. Consumers roaming on other carriers' networks have an 
expectation that they can access 911 services in an emergency. Given 
the important safety of life implications, carriers should make 
automatic bounce-back messages available to consumers roaming on their 
network to the same extent they provide such messages to their own 
subscribers.
    The Commission recognizes that certain legacy devices are not 
capable of sending text messages to a three-digit short code. For those 
devices that are not capable of generating messages to 911 and whose 
text messaging software cannot be upgraded over the air (e.g., through 
a push software upgrade), the CMRS provider will never receive a 
message and thus cannot generate a bounce-back message.\9\ The 
Commission clarifies that legacy devices that are incapable of sending 
texts via three digit short codes are not subject to the bounce-back 
message requirement,

[[Page 32172]]

provided the software for these devices cannot be upgraded over the air 
to allow text-to-911. In such cases, the messaging application or 
interface on the mobile device will likely provide an error message 
indicating an invalid destination number, reducing user confusion 
somewhat even if the message is less specific than the bounce-back 
message. If the text messaging software can be upgraded, however, the 
Commission treats such devices in the same manner as the software 
offered by interconnected text providers.
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    \9\ See Motorola Mobility Comments at 2-3 (arguing that the 
proposed bounce-back message requirement would not help customers 
who may be located in an area where text-to-911 is supported but who 
are using a device that is not technically capable of sending a 
three digit short code).
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    The Commission clarifies that CMRS providers are not required to 
provide an automatic bounce-back message when a consumer attempts to 
text 911 on a non-service initialized phone. Deliberations of the EAAC 
have affirmed that the text capability of non-service initialized 
handsets is neither technically nor economically feasible.\10\ At the 
same time, the Commission notes that some providers may provide text 
messaging solutions that allow users to send text messages even on NSI 
phones (e.g., Wi-Fi-enabled text applications). The Commission 
clarifies that those text providers must still provide bounce-back 
messaging consistent with the rules we adopt today.
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    \10\ See, e.g., Report of Emergency Access Advisory Committee 
(EAAC) Subcommittee 1 on Interim Text Messaging to 9-1-1, March 1, 
2013 at 9.
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    Finally, the Commission declines to require covered text providers 
to provide consumers with text-to-911 testing capability at this time. 
Until operational experience indicates otherwise, the Commission 
believes that consumer education efforts should discourage the sending 
of texts to 911 except in actual emergencies.
    The Commission has already committed the Public Safety and Homeland 
Security Bureau (PSHSB) and the Consumer and the Consumer and 
Governmental Affairs Bureau (CGB) to implement a comprehensive consumer 
education program concerning text-to-911, and to coordinate their 
efforts with state and local 911 authorities, other federal and state 
agencies, public safety organizations, industry, disability 
organizations, and consumer groups. The Commission directs PSHSB and 
CGB to put in place a consumer information Web site that provides the 
public with information and instructions on how and when to use text-
to-911 no later than June 30, 2013.
    The R&O is available at http://www.fcc.gov/document/text-911-bounce-back-message-order.

Procedural Matters

Paperwork Reduction Act

    The R&O does not contain new information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law No. 
104-13. Therefore, it does not contain any new or modified information 
collection burden for small business concerns with fewer than 25 
employees, pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198.

Congressional Review Act

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

Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act (RFA),\11\ the 
Commission has prepared this present Final Regulatory Flexibility 
Analysis (FRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in this R&O. The Commission 
will send a copy of this R&O, including this FRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration (SBA).\12\ In 
addition, the R&O and FRFA (or summaries thereof) will be published in 
the Federal Register.\13\
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    \11\ See 5 U.S.C. 603. The RFA, see 5 U.S.C.. 601 et. seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the 
CWAAA is the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA).
    \12\ See 5 U.S.C. 603(a).
    \13\ See id.
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A. Need for, and Objectives of, the Proposed Rules

    In this Report & Order (R&O), the Commission requires all CMRS 
providers and providers of interconnected text messaging services 
(i.e., all providers of software applications that enable a consumer to 
send text messages to all or substantially all text-capable U.S. 
telephone numbers and receive text messages from the same) to provide 
an automatic ``bounce-back'' text message in situations where a 
consumer attempts to send a text message to 911 in a location where 
text-to-911 is not available. The rules the Commission adopts in R&O 
will substantially reduce the risk of a person sending a text message 
to 911 in an emergency and mistakenly believing that 911 authorities 
have received it. Instead, the text sender will receive an immediate 
response that text-to-911 is not supported along with direction to use 
another means to contact emergency services.
    Requiring all CMRS providers and interconnected text providers to 
implement a bounce-back mechanism is particularly important because 
while deployment of text-to-911 has begun, the transition is still in 
the very early stages and will not be uniform. During the transition, 
text-to-911 will be available in certain geographic areas sooner than 
it is available in others and may be supported by certain service 
providers but not by others. At the same time, as text-to-911 becomes 
more widely available, it is likely to generate increased consumer 
expectations as to its availability, which makes it increasingly 
important for consumers to be made aware when it is not available in an 
emergency.
    The record in this proceeding indicates that some service providers 
already send an automatic bounce-back message to their subscribers when 
a subscriber attempts to send a text to 911. In addition, the four 
largest CMRS providers--AT&T, Sprint Nextel, T-Mobile, and Verizon--
have voluntarily committed to provide bounce-back messaging capability 
throughout their networks by June 30, 2013. In this R&O, the Commission 
builds on this voluntary commitment and concludes that all CMRS 
providers and interconnected text providers (collectively, ``covered 
text providers'') should be required to provide this capability. The 
Commission further specifies the circumstances under which a bounce-
back message must be provided and the information that the message must 
contain. Finally, while the Commission finds it is technically and 
economically feasible for all covered text providers to implement this 
capability quickly, the Commission recognizes that not all providers 
may be able to do so by the June 30, 2013 date to which the four major 
carriers are committed. Therefore, the Commission establishes September 
30, 2013 as the deadline for all covered text providers to implement 
the bounce-back capability required by this R&O. However, the 
Commission encourages covered text providers to implement bounce-back 
message capabilities as soon as possible in order to deal expeditiously 
with the existing consumer confusion about the availability of text-to-
911. Although this new requirement will impose additional costs on some 
of the covered text providers, the Commission has determined that these 
costs likely will be far exceeded by the public benefits of 
substantially reducing the risk of persons sending a text message to 
911

[[Page 32173]]

in an emergency and mistakenly believing that 911 authorities have 
received it.

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

    No commenter raised issues in response to the bounce-back portion 
of the IRFA included in the FNPRM. The Commission concludes that the 
proposed mandates here provide covered text providers and Public Safety 
Answering Points (PSAPs) with a sufficient measure of flexibility to 
account for technical and cost-related concerns. In the event that 
small entities face unique circumstances that restrict their ability to 
comply with the Commission's rules, the Commission can address them 
through the waiver process. The Commission has determined that 
implementing bounce-back messages is technically feasible and the cost 
of implementation is small.

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

    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 rules adopted, herein.\14\ The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \15\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\16\ 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 
SBA.\17\ Below, the Commission describes and estimates the number of 
small entity licensees that may be affected by the adopted rules of 
this R&O.
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    \14\ 5 U.S.C. 603(b)(3).
    \15\ 5 U.S.C. 601(6).
    \16\ 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.''
    \17\ 15 U.S.C. 632.
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    Small Businesses, Small Organizations, and Small Governmental 
Jurisdictions. As of 2009, small businesses represented 99.9% of the 
27.5 million businesses in the United States, according to the SBA.\18\ 
Additionally, a ``small organization'' is generally ``any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.'' \19\ Nationwide, as of 2007, there were 
approximately 1,621,315 small organizations.\20\ Finally, the term 
``small governmental jurisdiction'' is defined generally as 
``governments of cities, counties, towns, townships, villages, school 
districts, or special districts, with a population of less than fifty 
thousand.''\21\ Census Bureau data for 2007 indicate that there were 
89,527 governmental jurisdictions in the United States.\22\ The 
Commission estimates that, of this total, as many as 88,761 entities 
may qualify as ``small governmental jurisdictions.''\23\ Thus, the 
Commission estimates that most governmental jurisdictions are small.
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    \18\ See SBA, Office of Advocacy, ``Frequently Asked 
Questions,'' available at http://web.sba.gov/faqs/faqindex.cfm?areaID=24 (last visited Dec. 11, 2012).
    \19\ 5 U.S.C. 601(4).
    \20\ INDEPENDENT SECTOR, THE NEW NONPROFIT ALMANAC & DESK 
REFERENCE (2010).
    \21\ 5 U.S.C. 601(5).
    \22\ U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED 
STATES: 2011, Table 427 (2007).
    \23\ The 2007 U.S. Census data for small governmental 
organizations are not presented based on the size of the population 
in each such organization. There were 89,476 local governmental 
organizations in 2007. If we assume that county, municipal, 
township, and school district organizations are more likely than 
larger governmental organizations to have populations of 50,000 or 
less, the total of these organizations is 52,095. If we make the 
same population assumption about special districts, specifically 
that they are likely to have a population of 50,000 or less, and 
also assume that special districts are different from county, 
municipal, township, and school districts, in 2007 there were 37,381 
such special districts. Therefore, there are a total of 89,476 local 
government organizations. As a basis of estimating how many of these 
89,476 local government organizations were small, in 2011, we note 
that there were a total of 715 cities and towns (incorporated places 
and minor civil divisions) with populations over 50,000. CITY AND 
TOWNS TOTALS: VINTAGE 2011--U.S. Census Bureau, available at http://www.census.gov/popest/data/cities/totals/2011/index.html. If we 
subtract the 715 cities and towns that meet or exceed the 50,000 
population threshold, we conclude that approximately 88,761 are 
small. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 
2011, Tables 427, 426 (Data cited therein are from 2007).
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1. Wireless Telecommunications Service Providers
    Below, for those services subject to auctions, the Commission notes 
that, as a general matter, the number of winning bidders that qualify 
as small businesses at the close of an auction does not necessarily 
represent the number of small businesses currently in service. Also, 
the Commission does not generally track subsequent business size 
unless, in the context of assignments or transfers, unjust enrichment 
issues are implicated.
    Wireless Telecommunications Carriers (except satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular phone services, 
paging services, wireless Internet access, and wireless video 
services.\24\ The appropriate size standard under SBA rules is for the 
category Wired Telecommunications Carriers. Under that size standard, 
such a business is small if it has 1,500 or fewer employees.\25\ Census 
Bureau data for 2007, which now supersede data from the 2002 Census, 
show that there were 3,188 firms in this category that operated for the 
entire year. Of this total, 3,144 had employment of 999 or fewer, and 
44 firms had employment of 1,000 employees or more. Thus under this 
category and the associated small business size standard, the 
Commission estimates that the majority of wireless telecommunications 
carriers (except satellite) are small entities that may be affected by 
our actions.\26\
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    \24\ http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517210&search=2007%20NAICS%20Search.
    \25\ 13 CFR 121.201, NAICS code 517110.
    \26\  See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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    Incumbent Local Exchange Carriers (Incumbent LECs). Neither the 
Commission nor the SBA has developed a size standard for small 
businesses specifically applicable to incumbent local exchange 
services. The closest applicable size standard under SBA rules is for 
Wired Telecommunications Carriers. Under that size standard, such a 
business is small if it has 1,500 or fewer employees.\27\ According to 
Commission data, 1,307 carriers reported that they were incumbent local 
exchange service providers.\28\ Of these 1,307 carriers, an estimated 
1,006 have 1,500 or fewer employees and 301 have more than 1,500 
employees.\29\ Consequently, the Commission estimates that most 
providers of incumbent local exchange service are

[[Page 32174]]

small businesses that may be affected by rules adopted pursuant to the 
NPRM.
---------------------------------------------------------------------------

    \27\ See 13 CFR 121.201, NAICS code 517110.
    \28\ See Federal Communications Commission, Trends in Telephone 
Service (Sep. 2010) at Table 5.3, available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-301823A1.pdf (last 
accessed Apr. 25, 2013).
    \29\ See id.
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    The Commission has included small incumbent LECs in this present 
RFA analysis. As noted above, a ``small business'' under the RFA is one 
that, inter alia, meets the pertinent small business size standard 
(e.g., a telephone communications business having 1,500 or fewer 
employees), and ``is not dominant in its field of operation.'' \30\ The 
SBA's Office of Advocacy contends that, for RFA purposes, small 
incumbent LECs are not dominant in their field of operation because any 
such dominance is not ``national'' in scope.\31\ The Commission has 
therefore included small incumbent LECs in this RFA analysis, although 
it emphasizes that this RFA action has no effect on Commission analyses 
and determinations in other, non-RFA contexts.
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    \30\ 5 U.S.C. 601(3).
    \31\ See Letter from Jere W. Glover, Chief Counsel for Advocacy, 
SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small 
Business Act contains a definition of ``small business concern,'' 
which the RFA incorporates into its own definition of ``small 
business.'' See 15 U.S.C. 632(a); see also 5 U.S.C. 601(3). SBA 
regulations interpret ``small business concern'' to include the 
concept of dominance on a national basis. See 13 CFR 121.102(b).
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    Competitive Local Exchange Carriers (Competitive LECs), Competitive 
Access Providers (CAPs), Shared-Tenant Service Providers, and Other 
Local Service Providers. Neither the Commission nor the SBA has 
developed a small business size standard specifically for these service 
providers. The appropriate size standard under SBA rules is for the 
category Wired Telecommunications Carriers. Under that size standard, 
such a business is small if it has 1,500 or fewer employees.\32\ 
According to Commission data, 1,442 carriers reported that they were 
engaged in the provision of either competitive local exchange services 
or competitive access provider services.\33\ Of these 1,442 carriers, 
an estimated 1,256 have 1,500 or fewer employees and 186 have more than 
1,500 employees.\34\ In addition, 17 carriers have reported that they 
are Shared-Tenant Service Providers, and all 17 are estimated to have 
1,500 or fewer employees.\35\ In addition, 72 carriers have reported 
that they are Other Local Service Providers.\36\ Of the 72, seventy 
have 1,500 or fewer employees and two have more than 1,500 
employees.\37\ Consequently, the Commission estimates that most 
providers of competitive local exchange service, competitive access 
providers, Shared-Tenant Service Providers, and Other Local Service 
Providers are small entities that may be affected by rules adopted 
pursuant to the NPRM.
---------------------------------------------------------------------------

    \32\ See 13 CFR 121.201, NAICS code 517110.
    \33\ See Trends in Telephone Service at Table 5.3.
    \34\ See id.
    \35\ See id.
    \36\ See id.
    \37\ See id.
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    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 previous calendar years.\38\ 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.\39\ These small 
business size standards, in the context of broadband PCS auctions, have 
been approved by the SBA.\40\ 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.\41\ On April 15, 1999, the Commission completed the reauction 
of 347 C-, D-, E-, and F-Block licenses in Auction No. 22.\42\ Of the 
57 winning bidders in that auction, 48 claimed small business status 
and won 277 licenses.
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    \38\ 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, 7850-52, paras. 57-60 (1996) 
(``PCS Report and Order''); see also 47 CFR 24.720(b).
    \39\ See PCS Report and Order, 11 FCC Rcd at 7852, para. 60.
    \40\ See Alvarez Letter 1998.
    \41\ See Broadband PCS, D, E and F Block Auction Closes, Public 
Notice, Doc. No. 89838 (rel. Jan. 14, 1997).
    \42\ 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).
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    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.\43\ 
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.\44\ On May 21, 2007, the Commission 
completed an auction of 33 licenses in the A, C, and F Blocks in 
Auction No. 71.\45\ Of the 12 winning bidders in that auction, five 
claimed small business status and won 18 licenses.\46\ On August 20, 
2008, the Commission completed the auction of 20 C-, D-, E-, and F-
Block Broadband PCS licenses in Auction No. 78.\47\ Of the eight 
winning bidders for Broadband PCS licenses in that auction, six claimed 
small business status and won 14 licenses.\48\
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    \43\ See C and F Block Broadband PCS Auction Closes; Winning 
Bidders Announced, Public Notice, 16 FCC Rcd 2339 (2001).
    \44\ See Broadband PCS Spectrum Auction Closes; Winning Bidders 
Announced for Auction No. 58, Public Notice, 20 FCC Rcd 3703 (2005).
    \45\ See Auction of Broadband PCS Spectrum Licenses Closes; 
Winning Bidders Announced for Auction No. 71, Public Notice, 22 FCC 
Rcd 9247 (2007).
    \46\ Id.
    \47\ See Auction of AWS-1 and Broadband PCS Licenses Closes; 
Winning Bidders Announced for Auction 78, Public Notice, 23 FCC Rcd 
12749 (WTB 2008).
    \48\ Id.
---------------------------------------------------------------------------

    Narrowband Personal Communications Services. To date, two auctions 
of narrowband personal communications services (PCS) licenses have been 
conducted. For purposes of the two auctions that have already been 
held, ``small businesses'' were entities with average gross revenues 
for the prior three calendar years of $40 million or less. Through 
these auctions, the Commission has awarded a total of 41 licenses, out 
of which 11 were obtained by small businesses. To ensure meaningful 
participation of small business entities in future auctions, the 
Commission has adopted a two-tiered small business size standard in the 
Narrowband PCS Second Report and Order.\49\ A ``small business'' is an 
entity that, together with affiliates and controlling interests, has 
average gross

[[Page 32175]]

revenues for the three preceding years of not more than $40 million. 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. The SBA has approved 
these small business size standards.\50\
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    \49\ Amendment of the Commission's Rules to Establish New 
Personal Communications Services, Narrowband PCS, GEN Docket No. 90-
314, ET Docket No. 92-100, PP Docket No. 93-253, Second Report and 
Order and Second Further Notice of Proposed Rulemaking, 15 FCC Rcd 
10456 (2000).
    \50\ See Letter to Amy Zoslov, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, FCC, from 
Aida Alvarez, Administrator, SBA (Dec. 2, 1998).
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    Rural Radiotelephone Service. The Commission has not adopted a size 
standard for small businesses specific to the Rural Radiotelephone 
Service. A significant subset of the Rural Radiotelephone Service is 
the Basic Exchange Telephone Radio System (``BETRS''). In the present 
context, the Commission uses 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.
---------------------------------------------------------------------------

    \51\ NAICS Code 51210.
---------------------------------------------------------------------------

    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 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.
---------------------------------------------------------------------------

    \52\ Amendment of the Commission's Rules to Establish Part 27, 
the Wireless Communications Service (WCS), Report and Order, 12 FCC 
Rcd 10785, 10879 para. 194 (1997).
    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \54\ 13 CFR 121.201, NAICS code 517210 (2007 NAICS). The now-
superseded, pre-2007 CFR citations were 13 CFR 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.
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    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. 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

[[Page 32176]]

identified themselves as a small business won 5 of the 76 licenses won.
---------------------------------------------------------------------------

    \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 paras. 
291-295 (1997).
    \57\ Id. at 11068 para. 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).
    \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).
---------------------------------------------------------------------------

    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).\66\ Under the SBA small business size standard, a business 
is small if it has 1,500 or fewer employees.\67\ According to Trends in 
Telephone Service data, 413 carriers reported that they were engaged in 
wireless telephony.\68\ Of these, an estimated 261 have 1,500 or fewer 
employees and 152 have more than 1,500 employees.\69\ Therefore, more 
than half of these entities can be considered small.
---------------------------------------------------------------------------

    \66\ 13 CFR 121.201, NAICS code 517210.
    \67\ Id.
    \68\ Trends in Telephone Service at Table 5.3.
    \69\ Id.
---------------------------------------------------------------------------

    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.\70\ The second has a size standard of $25 
million or less in annual receipts.\71\
---------------------------------------------------------------------------

    \70\ 13 CFR 121.201, NAICS code 517410.
    \71\ 13 CFR 121.201, NAICS code 517919.
---------------------------------------------------------------------------

    The category of Satellite Telecommunications ``comprises 
establishments primarily 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.'' \72\ Census Bureau data for 2007 show that 512 
Satellite Telecommunications firms that operated for that entire 
year.\73\ Of this total, 464 firms had annual receipts of under $10 
million, and 18 firms had receipts of $10 million to $24,999,999.\74\ 
Consequently, the Commission estimates that the majority of Satellite 
Telecommunications firms are small entities that might be affected by 
our action.
---------------------------------------------------------------------------

    \72\ U.S. Census Bureau, 2007 NAICS Definitions, ``517410 
Satellite Telecommunications.''
    \73\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
    \74\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
---------------------------------------------------------------------------

    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.'' \75\ For this 
category, Census Bureau data for 2007 show that there were a total of 
2,383 firms that operated for the entire year.\76\ Of this total, 2,346 
firms had annual receipts of under $25 million and 37 firms had annual 
receipts of $25 million to $49, 999,999.\77\ Consequently, the 
Commission estimates that the majority of All Other Telecommunications 
firms are small entities that might be affected by our action.
---------------------------------------------------------------------------

    \75\ http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search.
    \76\ U.S. Censhttp://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
    \77\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
---------------------------------------------------------------------------

2. Equipment Manufacturers
    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 
communications 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.'' \78\ The SBA has developed a small business 
size standard for firms in this category, which is: All such firms 
having 750 or fewer employees.\79\ According to Census Bureau data for 
2010, there were a total of 810 establishments in this category that 
operated for the entire year.\80\ Of this total, 787 had employment of 
fewer than 500, and an additional 23 had employment of 500 to 999.\81\ 
Thus, under this size standard, the majority of firms can be considered 
small.
---------------------------------------------------------------------------

    \78\ U.S. Census Bureau, 2007 NAICS Definitions, ``334220 Radio 
and Television Broadcasting and Wireless Communications Equipment 
Manufacturing''; http://www.census.gov/naics/2007/def/ND334220.HTM#N334220.
    \79\ 13 CFR 121.201, NAICS code 334220.
    \80\ U.S. Census Bureau, American FactFinder, 2010 Economic 
Census, Industry Series, Industry Statistics by Employment Size, 
NAICS code 334220 (released June 26, 2012); http://factfinder.census.gov. The number of ``establishments'' is a less 
helpful indicator of small business prevalence in this context than 
would be the number of ``firms'' or ``companies,'' because the 
latter take into account the concept of common ownership or control. 
Any single physical location for an entity is an establishment, even 
though that location may be owned by a different establishment. 
Thus, the numbers given may reflect inflated numbers of businesses 
in this category, including the numbers of small businesses.
    \81\ Id. Eighteen establishments had employment of 1,000 or 
more.
---------------------------------------------------------------------------

    Semiconductor and Related Device Manufacturing. These 
establishments manufacture ``computer storage devices that allow the 
storage and retrieval of data from a phase change, magnetic, optical, 
or magnetic/optical media. The SBA has developed a small business size 
standard for this category of manufacturing; that size standard is 500 
or fewer employees' storage and retrieval of data from a phase change, 
magnetic, optical, or magnetic/optical media.'' \82\ According to data 
from the 2007 U.S. Census, in 2007, there were 954 establishments 
engaged in this business. Of these, 545 had from 1 to 19 employees; 219 
had from 20 to 99 employees; and 190 had 100 or more employees.\83\ 
Based on this data, the Commission concludes that the majority of the 
businesses engaged in this industry are small.
---------------------------------------------------------------------------

    \82\ U.S. Census Bureau, 2007 Economic Census, Industry Series: 
Manufacturing, ``Semiconductor and Related Device Manufacturing, '' 
NAICS code 334413.
    \83\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=300&-ds_name=EC0731I1&-_lang=en.
---------------------------------------------------------------------------

3. Information Service and Software Providers
    Software Publishers. Since 2007 these services have been defined 
within the broad economic census category of Custom Computer 
Programming Services; that category is defined as establishments 
primarily engaged in writing, modifying, testing, and supporting 
software to meet the needs of a particular customer. The SBA has 
developed a small business size standard for this category, which is 
annual gross receipts of $25 million or less. According to data from 
the 2007 U.S. Census, there were 41,571 establishments engaged in this 
business in 2007. Of these, 40,149 had annual gross receipts of less 
than $10,000,000. Another 1,422 establishments had gross receipts of 
$10,000,000 or more. Based on this data, the Commission concludes

[[Page 32177]]

that the majority of the businesses engaged in this industry are small.
    Internet Service Providers. Since 2007, these services have been 
defined within the broad economic census category of Wired 
Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' \84\ The SBA has developed a small business size 
standard for this category, which is: All such firms having 1,500 or 
fewer employees.\85\ According to Census Bureau data for 2007, there 
were 3,188 firms in this category, total, that operated for the entire 
year.\86\ Of this total, 3,144 firms had employment of 999 or fewer 
employees, and 44 firms had employment of 1000 employees or more.\87\ 
Thus, under this size standard, the majority of firms can be considered 
small. In addition, according to Census Bureau data for 2007, there 
were a total of 396 firms in the category Internet Service Providers 
(broadband) that operated for the entire year.\88\ Of this total, 394 
firms had employment of 999 or fewer employees, and two firms had 
employment of 1000 employees or more.\89\ Consequently, the Commission 
estimates that the majority of these firms are small entities that may 
be affected by rules adopted pursuant to the R&O.
---------------------------------------------------------------------------

    \84\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers'' (partial definition), available at 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2007%20NAICS%20Search (last visited Mar. 
27, 2013).
    \85\ 13 CFR 121.201, NAICS code 517110.
    \86\ U.S. Census Bureau, 2007 Economic Census, Information: 
Subject Series--Estab and Firm Size: Table 5, ``Employment Size of 
Firms for the United States: 2007, NAICS Code 517110'' (issued Nov. 
2010).
    \87\ See id.
    \88\ U.S. Census Bureau, 2007 Economic Census, Information: 
Subject Series--Estab and Firm Size: Table 5, ``Employment Size of 
Firms for the United States: 2007, NAICS Code 5171103'' (issued Nov. 
2010).
    \89\ See id.
---------------------------------------------------------------------------

    Internet Publishing and Broadcasting and Web Search Portals. The 
Commission's action may pertain to interconnected Voice over Internet 
Protocol (VoIP) services, which could be provided by entities that 
provide other services such as email, online gaming, web browsing, 
video conferencing, instant messaging, and other, similar IP-enabled 
services. The Commission has not adopted a size standard for entities 
that create or provide these types of services or applications. 
However, the Census Bureau has identified firms that ``primarily 
engaged in (1) publishing and/or broadcasting content on the Internet 
exclusively or (2) operating Web sites that use a search engine to 
generate and maintain extensive databases of Internet addresses and 
content in an easily searchable format (and known as Web search 
portals).'' \90\ The SBA has developed a small business size standard 
for this category, which is: All such firms having 500 or fewer 
employees.\91\ According to Census Bureau data for 2007, there were 
2,705 firms in this category that operated for the entire year.\92\ Of 
this total, 2,682 firms had employment of 499 or fewer employees, and 
23 firms had employment of 500 employees or more.\93\ Consequently, the 
Commission estimates that the majority of these firms are small 
entities that may be affected by rules adopted pursuant to the R&O.
---------------------------------------------------------------------------

    \90\ U.S. Census Bureau, ``2007 NAICS Definitions: 519130 
Internet Publishing and Broadcasting and Web Search Portals,'' 
available at http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=519130&search=2007%20NAICS%20Search (last visited Mar. 
27, 2013).
    \91\ See 13 CFR 121.201, NAICS code 519130.
    \92\ U.S. Census Bureau, 2007 Economic Census, Information: 
Subject Series--Estab and Firm Size: Table 5, ``Employment Size of 
Firms for the United States: 2007, NAICS Code 519130'' (issued Nov. 
2010).
    \93\ Id.
---------------------------------------------------------------------------

    All Other Information Services. The Census Bureau defines this 
industry as including ``establishments primarily engaged in providing 
other information services (except news syndicates, libraries, 
archives, Internet publishing and broadcasting, and Web search 
portals).'' \94\ The Commission's action pertains to interconnected 
VoIP services, which could be provided by entities that provide other 
services such as email, online gaming, web browsing, video 
conferencing, instant messaging, and other, similar IP-enabled 
services. The SBA has developed a small business size standard for this 
category; that size standard is $7.0 million or less in average annual 
receipts.\95\ According to Census Bureau data for 2007, there were 367 
firms in this category that operated for the entire year.\96\ Of these, 
334 had annual receipts of under $5.0 million, and an additional 11 
firms had receipts of between $5 million and $9,999,999.\97\ 
Consequently, the Commission estimates that the majority of these firms 
are small entities that may be affected by our action.
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    \94\ U.S. Census Bureau, ``2007 NAICS Definitions: 519190 All 
Other Information Services'', available at http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=519190&search=2007%20NAICS%20Search 
(last visited Mar. 27, 2013).
    \95\ See 13 CFR 121.201, NAICS code 519190.
    \96\ U.S. Census Bureau, 2007 Economic Census, Information: 
Subject Series--Estab and Firm Size: Table 5, ``Employment Size of 
Firms for the United States: 2007, NAICS Code 519190'' (issued Nov. 
2010).
    \97\ U.S. Census Bureau, 2007 Economic Census, Information: 
Subject Series--Estab and Firm Size: Table 4, ``Receipts Size of 
Firms for the United States: 2007, NAICS Code 519190'' (issued Nov. 
2010).
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    All Other Telecommunications. The Census Bureau defines this 
industry as including ``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.'' \98\ The SBA has 
developed a small business size standard for this category; that size 
standard is $30.0 million or less in average annual receipts.\99\ 
According to Census Bureau data for 2007, there were 2,383 firms in 
this category that operated for the entire year.\100\ Of these, 2,305 
establishments had annual receipts of under $10 million and 84 
establishments had annual receipts of $10 million or more.\101\ 
Consequently, the Commission estimates that the majority of these firms 
are small entities that may be affected by our action.
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    \98\ U.S. Census Bureau, ``2007 NAICS Definitions: 517919 All 
Other Telecommunications,'' available at http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search 
(last visited Mar. 27, 2013).
    \99\ See 13 CFR 121.201, NAICS code 517919.
    \100\ U.S. Census Bureau, 2007 Economic Census, Information: 
Subject Series--Estab and Firm Size: Table 4, ``Receipts Size of 
Firms for the United States: 2007, NAICS Code 517919'' (issued Nov. 
2010).
    \101\ See id.
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D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    In the R&O, the Commission amends its part 20 rules to require CMRS 
providers and certain interconnected text providers to implement 
``bounce-back'' messages when a consumer attempts to text 911 in an 
area where text-to-911 is unavailable. Specifically, the rules apply to 
all CMRS providers as well as all providers of interconnected text 
messaging services that enable

[[Page 32178]]

consumers to send text messages to and receive text messages from all 
or substantially all text-capable U.S. telephone numbers, including 
through the use of applications downloaded or otherwise installed on 
mobile phones. The rules also require covered text providers that are 
delivering texts to PSAPs that are supporting text-to-911 to provide a 
mechanism for the PSAP to request temporary suspension of text for any 
reason, including but not limited to network congestion, call-taker 
overload, PSAP failure, or security breach. In those circumstances, the 
covered text provider must provide a bounce-back message to any 
consumer attempting to send a text to 911 in the area covered by the 
temporary suspension. Covered text providers must also provide a 
mechanism to allow PSAPs to resume text-to-911 service after such 
temporary suspension.
    The projected compliance requirements resulting from the R&O will 
apply to all entities in the same manner. The Commission believes that 
applying the same rules equally to all entities in this context is 
necessary to alleviate potential consumer confusion from adopting 
different rules for different providers. As the nation transitions to 
full text-to-911, it is critical that all consumers, including 
consumers of services offered by small entities, be made aware of the 
limitations of text-to-911 in their area. The Commission believes, and 
the record in this proceeding confirms, that the costs and/or 
administrative burdens associated with the rules will not unduly burden 
small entities.
    Compliance costs for the new rule will be small, requiring only 
minor coding and/or server changes. Based on the record, CMRS providers 
and interconnected text providers have agreed that these changes are 
technically and financially feasible, with small costs to the covered 
provider. Additionally, the Commission provides an example of language 
that covered providers may use to satisfy the bounce-back requirement, 
further reducing potential administrative, legal and technical costs of 
compliance.

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

    The RFA requires an agency to describe any significant, 
specifically small business alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities. 
''\102\
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    \102\ 5 U.S.C. 603(c)(1)-(c)(4).
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    Based on the Commission's review of the record, the Commission 
finds that it is practicable for all CMRS providers, including small 
providers, to implement a bounce-back notification without incurring 
unduly burdensome costs. The record also reflects that it would not be 
unduly burdensome for covered text providers to implement bounce-back 
capability.\103\ The record in this proceeding indicates that some 
service providers, including small or rural providers,\104\ as well as 
covered text providers,\105\ already send an automatic bounce-back 
message to their subscribers when a subscriber attempts to send a text 
to 911. The R&O recognizes the technical and operational issues that 
must be addressed before imposing a specific notification requirement, 
and allows time for implementation of a standardized message.
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    \103\ See, e.g., Letter from Rebecca Murphy Thompson, General 
Counsel, to Marlene H. Dortch, Secretary, Federal Communications 
Commission, in PS Docket No. 11-153 and PS Docket No. 10-255, March 
25, 2013 (CCA Ex Parte); Proximiti Comments at 1.
    \104\ For example, SouthernLINC.
    \105\ For example, textPlus and Heywire.
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    In considering the record received in response to the FNPRM, the 
Commission examined alternatives to ease the burden on small and rural 
covered text providers. These alternatives included extending the 
implementation deadline, or exempting small and rural covered text 
providers. However, the record in this proceeding indicates that the 
technical and financial costs for implementing bounce-back messages are 
small. Many small carriers have argued that they can meet the 
requirements imposed in this R&O on a faster timeline than the one 
established in the rules. For example, the Competitive Carriers 
Association (CCA), which represents many small and rural CMRS 
providers, states that, ``. . . based on recent business developments 
cultivated by CCA and its members, most CCA carrier members will now be 
able to implement a bounce-back message by June 30, 2013. ''\106\ 
Nonetheless, in order to further ease the burden on small and rural 
covered providers, the rules the Commission adopts in the R&O extend 
the deadline proposed in the Further Notice of Proposed Rulemaking from 
June 30, 2013 to September 30, 2013. Additionally, the rules adopted in 
the R&O allow for certain limited exemptions in cases where it is 
technologically infeasible to implement a bounce-back message (e.g., 
for certain handsets that are incapable of doing so).
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    \106\ CCA Ex Parte at 1.
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    Further, the R&O contains a detailed Cost-Benefit Analysis which 
finds that the life-saving public safety benefits of imposing a bounce-
back requirement on covered text providers far outweigh the costs of 
such a rule.
    Finally, in the event that small entities face unique circumstances 
with respect to these rules, such entities may request waiver relief 
from the Commission. Accordingly, the Commission finds that it has 
discharged its duty to consider the burdens imposed on small entities.

E. Legal Basis

    The legal basis for any action that may be taken pursuant to this 
R&O is contained in Sections 1, 4(i), 301, 303(b), 303(r), 307, 309, 
316, 319, 324, 332, 333, 615a, 615a-1, and 615b of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154(i), 301, 303(b), 303(r), 
307, 309, 316, 319, 324, 332, 333, 615a, 615a-1, 615b, and 47 U.S.C. 
615c.

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

    None.

List of Subjects in 47 CFR Part 20

    Communications common carriers, Communications equipment, Radio.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

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

PART 20--COMMERCIAL MOBILE SERVICES

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

    Authority: 47 U.S.C. Sections 151, 154, 160, 201, 251-254, 301, 
303, 303(b), 303(r), 307, 309, 316, 319, 324, 332, 333, 615a, 615a-
1, 615b, and 615c unless otherwise noted. Section 20.12 is also 
issued under 47 U.S.C. 1302.


0
2. Section 20.18 is amended by adding paragraph (n) to read as follows:

[[Page 32179]]

Sec.  20.18  911 Service.

* * * * *
    (n) Text-to-911 Requirements. (1) Covered Text Provider: 
Notwithstanding any other provisions in this section, for purposes of 
this paragraph (n) of this section, a ``covered text provider'' 
includes all CMRS providers as well as all providers of interconnected 
text messaging services that enable consumers to send text messages to 
and receive text messages from all or substantially all text-capable 
U.S. telephone numbers, including through the use of applications 
downloaded or otherwise installed on mobile phones.
    (2) Automatic Bounce-back Message: an automatic text message 
delivered to a consumer by a covered text provider in response to the 
consumer's attempt to send a text message to 911 when the consumer is 
located in an area where text-to-911 service is unavailable or the 
covered text provider does not support text-to-911 service generally or 
in the area where the consumer is located at the time.
    (3) No later than September 30, 2013, all covered text providers 
shall provide an automatic bounce-back message under the following 
circumstances:
    (i) A consumer attempts to send a text message to a Public Safety 
Answering Point (PSAP) by means of the three-digit short code ``911''; 
and
    (ii) The covered text provider cannot deliver the text because the 
consumer is located in an area where:
    (A) Text-to-911 service is unavailable; or
    (B) The covered text provider does not support text-to-911 service 
at the time.
    (4)(i) A covered text provider is not required to provide an 
automatic bounce-back message when:
    (A) Transmission of the text message is not controlled by the 
provider;
    (B) A consumer is attempting to text 911, through a text messaging 
application that requires CMRS service, from a non-service initialized 
handset;
    (C) When the text-to-911 message cannot be delivered to a PSAP due 
to failure in the PSAP network that has not been reported to the 
provider; or
    (D) A consumer is attempting to text 911 through a device that is 
incapable of sending texts via three digit short codes, provided the 
software for the device cannot be upgraded over the air to allow text-
to-911.
    (ii) The provider of a preinstalled or downloadable interconnected 
text application is considered to have ``control'' over transmission of 
text messages for purposes of paragraph (n)(4)(i)(A) of this section. 
However, if a user or a third party modifies or manipulates the 
application after it is installed or downloaded so that it no longer 
supports bounce-back messaging, the application provider will be 
presumed not to have control.
    (5) The automatic bounce-back message shall, at a minimum, inform 
the consumer that text-to-911 service is not available and advise the 
consumer or texting program user to use another means to contact 
emergency services.
    (6) Covered text providers that support text-to-911 must provide a 
mechanism to allow PSAPs that accept text-to-911 to request temporary 
suspension of text-to-911 service for any reason, including, but not 
limited to, network congestion, call taker overload, PSAP failure, or 
security breach, and to request resumption of text-to-911 service after 
such temporary suspension. During any period of suspension of text-to-
911 service, the covered text provider must provide an automatic 
bounce-back message to any consumer attempting to text to 911 in the 
area subject to the temporary suspension.
    (7) A CMRS provider subject to Sec.  20.12 shall provide an 
automatic bounce-back message to any consumer roaming on its network 
who sends a text message to 911 when
    (i) The consumer is located in an area where text-to-911 service is 
unavailable, or
    (ii) The CMRS provider does not support text-to-911 service at the 
time.
    (8) A software application provider that transmits text messages 
directly into the SMS network of the consumer's underlying CMRS 
provider satisfies the obligations of paragraph (n)(3) of this section 
provided it does not prevent or inhibit delivery of the CMRS provider's 
automatic bounce-back message to the consumer.
[FR Doc. 2013-12748 Filed 5-28-13; 8:45 am]
BILLING CODE 6712-01-P