Divided FCC Approves Data Roaming Mandate

Commissioners Michael Copps and Mignon Clyburn, the commission’s other two Democrats, had long urged Genachowski to seek a vote on data roaming, which was proposed in the National Broadband Plan. Sprint Nextel, T-Mobile before the announcement of its sale to AT&T, and numerous small carriers had urged action. AT&T and Verizon opposed the mandate. A top Verizon official warned last week that a legal challenge is likely (CD April 4 p1).

The order requires carriers to offer data roaming on commercially reasonable terms and conditions, imposing the mandate under the FCC’s Title III authority. Parties would have the option of filing a petition for declaratory ruling under Section 1.2 of the commission’s rules or filing a formal or informal complaint, and disputes would be resolved on a case-by-case basis. Genachowski said the FCC would have the option of forcing carriers into what he termed “baseball-style arbitration” when conflicts arose. In baseball style arbitration each party offers a dollar amount and a arbiter selects one of the amounts, not an amount in the middle.

McDowell said the chairman offered a “streamlined order” that was “motivated by the best of intentions,” but is not defensible in court. “Even though the order attempts to explain otherwise, in mandating the provision of data roaming and establishing a means for dispute resolution that includes adjudicating terms and rates, my colleagues in the majority are, in essence, imposing a Title II common carrier regulatory regime in violation of Title III of the Communications Act and contrary to commission precedent,” he said.

"I understand the importance of data roaming, but, I cannot support this order for a fundamental reason,” Baker said. “In imposing these data roaming obligations on mobile broadband services, we exceed our authority and impose rules of common carriage that are impermissible under our statute.” Baker said Section 332(c)(2) of the Communications Act “states in no uncertain terms” that “a private mobile service [like data roaming] shall not … be treated as a common carrier for any purpose under this Act."

Genachowski said the rules give carriers “flexibility to tailor agreements to different environments and to account for concerns regarding congestion and technical compatibility.” The record built by the commission “demonstrates that there is in fact a significant problem,” he said. “Consumers have come to expect the ability to roam nationwide and they demand it for all their basic mobile services.” The record also shows that some carriers have refused to negotiate 3G and 4G roaming agreements and have “taken other steps to impede competition."

Genachowski said the order would most likely withstand challenge in the courts, despite statements by his Republican colleagues. He noted that by his count the FCC prevailed in 15 of the 16 direct statutory challenges to FCC order since 2007. “The truth is that these claims of overreaching are themselves an overreach,” he said.

The FCC is right to eliminate “artificial distinctions” between voice and data, Copps said. “These safeguards ensure that small regional carriers can hope to compete in the wireless marketplace while investing in their own buildout of facilities,” he said. “It means that their subscribers can have comparable flexibility to move about the country as customers of the wireless behemoths."

"No single wireless carrier has built out its entire licensed service area,” Clyburn said. “Therefore, to fill gaps in their coverage, all carriers must potentially roam on networks that other, non-affiliated, companies built.” 2G roaming agreements between carriers don’t go far enough, she said.

Since 2007 FCC decisions have been denied, vacated or remanded in full five times, according to an alternate list of court decisions sent to Communications Daily. The list includes Comcast v. FCC last year; the FCC’s Cable Horizontal and Vertical Ownership Limits setting a cable ownership cap, vacated by the D.C. Circuit in 2009; an FCC decision on an SBC request for confidential treatment of information it submitted to the agency, remanded by the 3rd Circuit in 2009; Fox TV Stations v. FCC, in which the D.C. Circuit found last year that the commission’s indecency enforcement policy was impermissibly vague; and an order reassigning toll-free suicide prevention hotline numbers to the Substance Abuse and Mental Health Services Administration, vacated by the D.C. Circuit last year. One FCC official noted the chairman was only speaking about direct statutory challenges, not about other losses in the courts. “Those cases are irrelevant for the point the chairman was making,” the official said.

Public Knowledge, the Rural Cellular Association, Cellular South, Consumers Union and others supported the FCC decision in statements after the meeting. “In a few years, we will look back at today’s decision and wonder why there was ever any hesitation to require competitive connectivity in an IP world,” said RCA President Steve Berry. “Requiring automatic data roaming is the only logical conclusion you can come to -- it is pro-business, pro-investment, pro-jobs and pro-competition.”

Cellular South CEO Hu Meena said he hopes the order will be followed by a second mandating 700 MHz device interoperability. “The need for both data roaming and 700 MHz interoperability is even greater in the context of AT&T’s proposed acquisition of T-Mobile, and AT&T’s and Verizon’s de facto duopoly in the 700 MHz spectrum,” Meena said.

AT&T Senior Vice President Bob Quinn questioned the need for the FCC to act. “The evidence presented in this proceeding demonstrated conclusively that proponents of a roaming mandate were seeking government intervention, not to obtain agreements -- which are plentiful -- but rather to regulate rates downward,” he said in a statement.

"The U.S. wireless communications marketplace is one of the most dynamic, competitive and innovative in the world. Consumers have many choices in wireless products and services and expect that these services will be available wherever they go,” said Verizon Executive Vice President Tom Tauke. “To meet these customer expectations Verizon has entered into more than 40 data-roaming agreements with our competitors -- big, small, urban and rural.”