Data Roaming Order Appears Stalled as FCC Examines Record
Approval of a final data roaming order -- as recommended in the National Broadband Plan -- could face an uphill fight even though there have long appeared to be three votes in favor with strong support from FCC Democrats, said agency and industry officials. Chairman Julius Genachowski must decide by March 17 whether to seek a vote at the April 7 meeting.
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"There’s a push against it,” said one FCC official, noting that Wireless Bureau staff have been making calls to smaller carriers asking about roaming agreements they have with larger carriers. “Facts are getting in the way,” the official said. “Deals are being signed.” A second FCC official said an order has been ready to move since December, but nothing has happened.
The fight over data roaming pits AT&T and Verizon Wireless against most other carriers. T-Mobile and Sprint Nextel have been at the FCC repeatedly seeking action. Advocates have lined up some support on Capitol Hill. In a recent letter to Genachowski, Sen. Thad Cochran, R-Miss., stressed the benefits seen as a result of voice roaming. “It is now important that the FCC implement policies which would guarantee the same reliable roaming coverage with regard to data services,” he wrote.
"Politically, it is difficult for the FCC to move ahead with any new regulatory initiatives in this environment -- let alone any that are so easily portrayed by AT&T and Verizon as further efforts to regulate the Internet,” said Public Knowledge Legal Director Harold Feld. “A vote on data roaming is almost preordained at this point to fall along party lines, and would only add fuel to House Republican allegations that Genachowski is trying to expand FCC authority over the Internet in the absence of any market failure. That does not mean that data roaming is off the table permanently. But it is extremely unlikely to happen when Congress is holding hearings and votes every few weeks on network neutrality.” Feld said it is “telling” that carriers pushing data roaming have been unable to line up support from House Republicans.
Small carriers are just looking for a level playing field, said Rural Cellular Association President Steve Berry in an interview Tuesday. He’s concerned that the order is not moving forward. Berry said his members have provided many examples to the Wireless Bureau showing the problems they have had negotiating data roaming agreements with larger carriers. “This is fundamental to being able to market your product and get customers coming to your service,” he said. “This is not a mandate that has with it a whole regulatory triage of terms, conditions and everything else.” Berry likened the order to NASCAR. “Everyone gets the same horsepower engine, they sort of get the same frame, and the it’s up to the team to set the engine up and tune it,” he said. “The best competitor, the best driver, the best team, the best pit crew wins the race."
"The market for roaming services has effectively become a monopoly, with AT&T the provider of roaming for the GSM family of technologies and Verizon for CDMA technologies,” said Tom Sugrue, senior vice president at T-Mobile. “Monopoly is the very essence of market failure, and short term fixes or deals with the Big Two don’t change this fact or solve the basic problem long-term, which is that there is a lack of competitive alternatives to AT&T and Verizon. Just last April a unanimous FCC supported extending a right to voice roaming to all carriers. The FCC should be even more concerned that there be the same right in the data context as data is rapidly becoming the preferred form of communications for many Americans."
Moving ahead on data roaming “appears to have some challenges for the FCC in light of legal issues raised by the nation’s two largest wireless carriers and a post-midterm political landscape in which new net neutrality rules and government regulation generally are under attack by Republicans,” said Jeff Silva, analyst at Medley Global Advisors. “Chairman Genachowski will have to carefully weigh potential policy benefits against political risks in deciding whether to take the next step."
Major legal issues remain about whether the FCC can mandate data roaming, said Free State Foundation President Randolph May. “Apart from the legal issue, as a policy matter the commission needs to be careful not to act in a way that discourages carriers from building out their own facilities,” he said. “If the agency were to decide to require data roaming at all, it should do so only on a case-by-case basis that applies an antitrust-like economic analysis to particular market situations.”