Small Carriers Lose Final Fight on Roaming Order

Smaller carriers have fought what appears to be a losing battle against “factors” included in an order eliminating the in-market exception approved as part of the commission’s automatic roaming rules in 2007. The order is a win for carriers other than Verizon Wireless and AT&T, because it removes the exclusion and creates a presumption in favor of roaming, FCC officials said. It does provide a list of nonexclusive factors to be considered by the FCC only when a formal complaint is filed. Some smaller carriers want the factors to be removed because of fears that they could be used by AT&T or Verizon to reject roaming requests. The factors are not the same as those sought by Verizon (CD April 12 p5).

Also, FCC officials said, Chairman Julius Genachowski is expected to circulate a revised version of the roaming order addressing questions about commission authority in the accompanying further notice of proposed rulemaking on data roaming, in the aftermath of last week’s FCC v. Comcast decision. This would be one of the first cases where the commission has to take on the jurisdictional issue following the decision. The balance between eliminating the in-market exception entirely and including factors for agency analysis as part of any formal complaints filed at the FCC are the key components of a compromise reached by commissioners last year, an FCC official said.

T-Mobile, Cellular South, Leap Wireless, MetroPCS and various other carriers and associations met with aides to all five commissioners this week to express their concerns about the order, said an ex parte filing. “In particular, the Wireless Industry Representatives urged the Commission to adopt a strong presumption in favor of roaming, both in-market and out-of-market,” they said. “The Wireless Industry Representatives expressed their concern regarding Verizon’s advocacy of ‘factors’ that would be taken into account in roaming complaint proceedings, and urged the Commission to guard against efforts by Verizon and AT&T to use such factors to continue to discriminate on an ‘in-market’ basis if the in-market exception is stricken from the Commission’s current roaming rule.”

Sprint Nextel representatives “urged the permanent and complete elimination of the in-market exception,” in meetings at the FCC, said an ex parte filing. “Verizon’s proposed clarifications and factors, if adopted, would have the net effect of recreating the current in-market exception."

AT&T, meanwhile, challenged a statement in a April 9 letter from Leap that it has “pull(ed) up the roaming ladder for competitors.” In a letter to the commission, AT&T said, “Prior to the Commission’s adoption of automatic roaming requirements in the 2007 Roaming Order, AT&T already had reciprocal roaming agreements with the vast majority of the GSM carriers in the United States. … The same is true today. Indeed, AT&T has roaming agreements with every domestic GSM carrier (small or large) that has requested a roaming agreement with AT&T.”