FCC Ends Home Roaming Exclusion Over AT&T, Verizon Objections

The FCC made a long-expected change to its automatic roaming rules Wednesday, eliminating the home roaming exclusion that had been approved as a surprise feature of the commission’s automatic roaming rules in 2007. The new order creates a presumption in favor of roaming even when a carrier owns a spectrum license in a market but has yet to build out its network there. A commission rulemaking also posed a series of questions on data roaming as recommended in the National Broadband Plan.

The roaming rule change was a loss for Verizon Wireless and AT&T, which sought to keep the in-market exclusion in place. They argued it encourages expansion of wireless networks and competition. Both criticized the order Wednesday.

"We believe that there’s neither legal nor business rationale for their decision today,” a Verizon Wireless spokesman said. AT&T Senior Vice President Robert Quinn said that “many of the carriers lamenting to Washington, D.C., regulators about the harms caused by having a home roaming rule have at the same time been boasting to Wall Street analysts about how successful their roaming strategy is, since it allows them to build out in densely-populated urban and suburban areas, but roam on someone else’s network in the less-populated, rural areas.” Those areas “are notoriously expensive to build-out,” he said. “While we understand why that might be some carriers’ preferred business model, it is not sound regulatory policy."

Commissioners reached a compromise, under which the order provides a list of nonexclusive factors to be considered by the FCC only when a formal complaint is filed after a roaming request is denied (CD April 16 p1). The agency will address any disputes “on a case-by-case basis, taking into consideration the totality of the circumstances presented to determine whether requiring a roaming agreement would best further the public interest goals,” said an FCC news release.

Commissioner Robert McDowell said the exclusion unintentionally caused confusion. “The rule led some to conclude that a carrier effectively had no right to request roaming in any market where it held spectrum, and the would-be host carrier had no obligation to negotiate roaming arrangements for those markets,” he said in a written statement. “Carriers also complained that they had no rights under Title II to seek relief from the Commission for those disputes arising from roaming requests in home markets."

McDowell asked for industry advice as part of the data rulemaking notice on whether the FCC can mandate data roaming, in light of the FCC decision in 2007 to classify wireless broadband as a Title I service. “Is there a legally sustainable path to mandate automatic data roaming?” he asked. “I have sought this analysis well before the D.C. Circuit’s recent ruling in the Comcast case, which casts even more doubt on our jurisdiction in this area."

The FCC got things wrong three years ago when it approved the exclusion as part of the roaming rules, said Commissioner Michael Copps. “Based on several years of experience and an extensive record, we now correct the error made in 2007 to exclude wireless roaming in a requesting carrier’s home market from the automatic roaming requirement,” he said. “The record clearly shows that the 2007 home-market exclusion discouraged competition, hampered innovation and investment and harmed consumers.” Copps was also pleased with the data order. “The National Broadband Plan makes it clear that consumer demand for mobile connectivity grows stronger by the day,” he said. “So what good is your smartphone if you can roam for voice but not for any of the other services you bought it for?"

Commissioner Mignon Clyburn noted some smaller carriers wanted language stripped from the order about the appropriateness of considering a requesting carrier’s lack of build out, in its home markets, in determining whether the terms of a roaming agreement are reasonable. “I have decided to support today’s order, because the relevant language makes it clear that any roaming request is presumed to be reasonable, and no hosting carrier can use a requesting carrier’s lack of build out as the sole dispositive factor for imposing roaming terms and conditions,” she said.

FCC Chairman Julius Genachowski told reporters the order was a compromise. “What you saw was the staff and the commissioners focused on making sure that there is a real basis for competition in mobile, that consumers have seamless access to competitive” services, he said. “We do this in a way that’s sensitive to maximizing incentives to build out multiple competing networks."

"The FCC’s action today is pro-competitive and takes appropriate measures to level the playing field amongst wireless carriers to enable them to negotiate reasonable commercial voice roaming agreements that benefit consumers with greater coverage and choice,” T-Mobile said. “We are also looking forward to participating in the Commission’s further notice proceeding on data roaming, which will be important to a competitive wireless broadband future.” Leap Wireless said, “No carrier should have the ability to unreasonably restrict consumers from accessing their mobile phones anywhere in the United States -- either by refusing to provide roaming service in certain geographic areas or by charging exorbitant and discriminatory wholesale roaming prices.” The Rural Cellular Association sees this as “a huge step forward for small rural and regional carriers,” President Steve Berry said. “RCA has worked diligently on this issue, and we are pleased the FCC has taken action to eliminate the in-market exception.”