FCC Adopts Data Roaming Rules

April 7, 2011. The Federal Communications Commission (FCC) adopted and released a Second Report and Order [79 pages in PDF] that imposes common carrier like regulations for data roaming. The Commission divided 3-2, with Democrats Julius Genachowski, Michael Copps and Mignon Clyburn supporting the item, and Republicans Robert McDowell and Meredith Baker dissenting.

The FCC has long imposed voice roaming rules. This order provides that any "Commercial Mobile Data Service" is required to offer roaming arrangements on "commercially reasonable terms and conditions". It puts the FCC in the position of regulating rates.

The order would also be vulnerable if subjected to judicial review.

Commissioner McDowell wrote in his dissenting statement that "consumers expect that their mobile data services ... will work seamlessly wherever they go", and that "benefits flow from the widespread availability of data roaming", but the FCC "simply does not have the legal authority to adopt the regulatory regime mandated by this order".

McDowell (at left) added that "This decision embodies the hallmarks of classic common carriage: The regime compels the provision of service and restricts the discretion of providers to determine to whom -- and on what rates and terms – to provide it. Indeed, the new rules constitute common carrier regulation by their very existence -- in mandating the provision of a mere information service. Thus, when considered in their totality, these new mandates plainly do violate the Act and Commission precedent. We cannot evade the law by upending years of legal precedent and congressional intent to recast and redefine the meaning of common carriage."

Similarly, Commissioner Baker wrote in her dissenting statement that "we exceed our authority and impose rules of common carriage that are impermissible under our statute".

She also wrote that "Overall, our record shows that there are not generalized or categorical refusals to deal by wireless providers. Instead, there is a fundamental inability to agree on financial terms and conditions, primarily rates." She also questioned whether the FCC is equipped to determine rates.

Chairman Genachowski wrote in his statement that "the record evidence supplied by carriers in the market shows that roaming deals simply are not being widely offered on commercially reasonable terms. On the contrary, the record makes clear that some providers have refused to negotiate 3G or 4G data roaming agreements, have created long delays, or have taken other steps to impede competition."

He added that "A broad coalition of rural carriers informed us that their attempts to enter into data roaming negotiations with nationwide providers are ``many times rejected out of hand.´´"

Copps wrote in his concurring statement that "These safeguards ensure that small regional carriers can hope to compete in the wireless market-place".

The rules adopted by the FCC define "Commercial Mobile Data Service" as "Any mobile data service that is not interconnected with the public switched network and is: (1) provided for profit; and (2) available to the public or to such classes of eligible users as to be effectively available to the public. Commercial mobile data service includes services provided by Mobile Satellite Services and Ancillary Terrestrial Component providers to the extent the services provided meet this definition."

These rules require that "A facilities-based provider of commercial mobile data services is required to offer roaming arrangements to other such providers on commercially reasonable terms and conditions", subject to certain limitations.

Also, "A party alleging a violation of this section may file a formal or informal complaint" with the FCC.

AT&T's Bob Quinn stated in a release that "Roaming agreements for both voice and data are in place throughout the country, and were reached through normal commercial negotiations. 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 added that "While we will thoroughly review today's order, we continue to believe that a data roaming mandate is unwarranted and will discourage investment and build out of broadband facilities for both those seeking regulated roaming rates and those forced to wholesale facilities at those rates."

James Assey of the National Cable and Telecommunications Association (NCTA) stated in a release that "adopting enforceable data roaming rights will enable new entrants to compete on a nationwide basis and give consumers more choice and flexibility in wireless services."

Harold Feld, of the Public Knowledge (PK), praised the FCC's action in a release. He wrote that "This order gives sufficient flexibility to carriers to work out agreements to make this possible, while promoting competition. The requirement of ‘commercially reasonable terms’ and other features will give carriers the ability to work out agreements for their particular circumstances without entering into common carrier regulation."

This item is FCC 11-52 in WT Docket No. 05-265. See also, FCC release.