Sec.  20.9   Commercial mobile radio service.

   (a)  The following mobile services shall be treated as common carriage
   services and regulated as commercial mobile radio services (including any
   such service offered as a hybrid service or offered on an excess capacity
   basis to the extent it meets the definition of commercial mobile radio
   service, or offered as an auxiliary or ancillary service), pursuant to
   Section 332 of the Communications Act, 47 U.S.C. 332:

   (1) Private Paging (part 90 of this chapter), excluding not-for-profit
   paging systems that serve only the licensee's own internal communications
   needs;

   (2) Stations that offer Industrial/Business Pool ( Sec. 90.35 of this chapter)
   eligibles for-profit, interconnected service;

   (3) Land Mobile Systems on 220–222 MHz (part 90 of this chapter), except
   services that are not-for-profit or do not offer interconnected service;

   (4) Specialized Mobile Radio services that provide interconnected service
   (part 90 of this chapter);

   (5) Public Coast Stations (part 80, subpart J of this chapter);

   (6) Paging and Radiotelephone Service (part 22, subpart E of this chapter).

   (7) Cellular Radiotelephone Service (part 22, subpart H of this chapter).

   (8) Air-Ground Radiotelephone Service (part 22, subpart G of this chapter).

   (9) Offshore Radiotelephone Service (part 22, subpart I of this chapter).

   (10) Any mobile satellite service involving the provision of commercial
   mobile radio service (by licensees or resellers) directly to end users,
   except that mobile satellite licensees and other entities that sell or lease
   space segment capacity, to the extent that it does not provide commercial
   mobile  radio service directly to end users, may provide space segment
   capacity  to commercial mobile radio service providers on a non-common
   carrier basis, if so authorized by the Commission;

   (11) Personal Communications Services (part 24 of this chapter), except as
   provided in paragraph (b) of this section;

   (12) Mobile operations in the 218–219 MHz Service (part 95, subpart F of
   this chapter) that provide for-profit interconnected service to the public;

   (13)  For-profit  subsidiary  communications  services  transmitted on
   subcarriers within the FM baseband signal, that provide interconnected
   service (47 CFR 73.295 of this chapter); and

   (14) A mobile service that is the functional equivalent of a commercial
   mobile radio service.

   (i) A mobile service that does not meet the definition of commercial mobile
   radio service is presumed to be a private mobile radio service.

   (ii)  Any interested party may seek to overcome the presumption that a
   particular mobile radio service is a private mobile radio service by filing
   a petition for declaratory ruling challenging a mobile service provider's
   regulatory treatment as a private mobile radio service.

   (A) The petition must show that: (1) The mobile service in question meets
   the definition of commercial mobile radio service; or

   (2) The mobile service in question is the functional equivalent of a service
   that meets the definition of a commercial mobile radio service.

   (B) A variety of factors will be evaluated to make a determination whether
   the mobile service in question is the functional equivalent of a commercial
   mobile  radio  service,  including: consumer demand for the service to
   determine whether the service is closely substitutable for a commercial
   mobile  radio  service; whether changes in price for the service under
   examination, or for the comparable commercial mobile radio service would
   prompt  customers  to change from one service to the other; and market
   research information identifying the targeted market for the service under
   review.

   (C) The petition must contain specific allegations of fact supported by
   affidavit(s) of person(s) with personal knowledge. The petition must be
   served on the mobile service provider against whom it is filed and contain a
   certificate of service to this effect. The mobile service provider may file
   an opposition to the petition and the petitioner may file a reply. The
   general rules of practice and procedure contained in  Sec.  Sec. 1.1 through 1.52 of
   this chapter shall apply.

   (b) Licensees of a Personal Communications Service or applicants for a
   Personal  Communications Service license, and VHF Public Coast Station
   geographic area licensees or applicants, proposing to use any Personal
   Communications Service or VHF Public Coast Station spectrum to offer service
   on a private mobile radio service basis must overcome the presumption that
   Personal Communications Service and VHF Public Coast Stations are commercial
   mobile radio services.

   (1) The applicant or licensee (who must file an application to modify its
   authorization) seeking authority to dedicate a portion of the spectrum for
   private mobile radio service, must include a certification that it will
   offer Personal Communications Service or VHF Public Coast Station service on
   a private mobile radio service basis. The certification must include a
   description of the proposed service sufficient to demonstrate that it is not
   within the definition of commercial mobile radio service in  Sec. 20.3. Any
   application requesting to use any Personal Communications Service or VHF
   Public Coast Station spectrum to offer service on a private mobile radio
   service basis will be placed on public notice by the Commission.

   (2) Any interested party may file a petition to deny the application within
   30 days after the date of public notice announcing the acceptance for filing
   of the application. The petition shall contain specific allegations of fact
   supported by affidavit(s) of person(s) with personal knowledge to show that
   the applicant's request does not rebut the commercial mobile radio service
   presumption. The petition must be served on the applicant and contain a
   certificate of service to this effect. The applicant may file an opposition
   with allegations of fact supported by affidavit. The petitioner may file a
   reply.  No  additional pleadings will be allowed. The general rules of
   practice and procedure contained in  Sec.  Sec. 1.1 through 1.52 of this chapter and
    Sec. 22.30 of this chapter shall apply.

   (c) Any provider of private land mobile service before August 10, 1993
   (including  any  system  expansions, modifications, or acquisitions of
   additional licenses in the same service, even if authorized after this
   date), and any private paging service utilizing frequencies allocated as of
   January  1,  1993, that meet the definition of commercial mobile radio
   service, shall, except for purposes of  Sec. 20.5 (applicable August 10, 1993 for
   the providers listed in this paragraph), be treated as private mobile radio
   service until August 10, 1996. After this date, these entities will be
   treated as commercial mobile radio service providers regulated under this
   part.

   [ 59 FR 18495 , Apr. 19, 1994, as amended at  62 FR 18843 , Apr. 17, 1997;  63 FR 40062 , July 27, 1998;  64 FR 26887 , May 18, 1999;  64 FR 59659 , Nov. 3, 1999;
    66 FR 10968 , Feb. 21, 2001]