Data Roaming Notice Explains FCC Authority Over Title I

A rulemaking notice on data roaming concludes that even though wireless broadband is classified as a lightly regulated Title I service, the FCC has the authority to impose data roaming requirements. It was released late Wednesday and approved earlier at that day’s meeting (CD April 22 p4). Agency officials said Commissioners Robert McDowell and Meredith Baker, while not opposing the final notice or seeking to delay it, pushed to have the jurisdiction issue explored in more depth beyond the notice as circulated by Chairman Julius Genachowski.

The text includes a lengthy discussion of FCC authority to impose roaming requirements, given the agency’s determination that wireless broadband is an information service and the U.S. Court of Appeals for the D.C. Circuit’s ruling in Comcast v. FCC. The notice is the first since Comcast in which the FCC has offered a defense of its own authority. Industry sources said they had read the passage carefully with an eye on the arguments the FCC will likely make on pending net neutrality rules. “It’s really doubtful,” said an FCC official. “They're convinced they have the justification. I'm not. It absolutely is a precursor to net neutrality -- data equals broadband. This has nothing to do with voice."

"The Commission has not determined whether the provision of automatic roaming should be considered a telecommunications service, and thus subject to Title II, even if the subscriber is using the roaming arrangement to access an information service,” the notice said. “We believe that, regardless of whether the services a subscriber would access through roaming arrangements are telecommunications services or information services, the Commission has statutory authority to require automatic roaming for them.” If data roaming is a telecom service it is “subject to roaming obligations pursuant to our authority under Title II and Title III,” the FCC said. If considered an information service, “we have the authority to promulgate roaming requirements under Title III and other provisions.” The commission sought comments on whether to require data roaming in 2007, but there was no follow up order. The FCC said this time around it needs to “resolve this issue in an expeditious manner."

The notice indicates the FCC is inclined to impose roaming requirements for data. “Many providers have argued that ensuring the availability of roaming arrangements for mobile broadband will be critical to achieving these goals. We also note that roaming services have helped to promote competition and seamless nationwide coverage in the mobile telephony market,” the order said. “We note mobile broadband networks, particularly ‘fourth-generation’ networks, are still at an early stage of deployment, similar to the early years of the mobile telephony market."

The agency also released the text of its order eliminating the roaming home market exclusion, which also spells out the nonexclusive factors the FCC will look to in in determining whether to require one carrier to provide voice roaming to another. The order makes clear that carriers that reject roaming requests face an uphill fight. “We seek to encourage parties to negotiate roaming agreements based on reasonable terms and conditions,” the order said. “In case of a dispute, our consideration begins with the presumption that a request by a technologically compatible carrier for automatic roaming is reasonable.” This presumption however, “is rebuttable."

The order lists 11 factors the FCC can take into account when disputes arise. The commission will look at “the level of competitive harm in a given market and the benefits to consumers” and whether a requesting carrier already has facilities in the market. It will examine “significant economic factors, such as whether building another network in the geographic area may be economically infeasible or unrealistic, and the impact of any ‘head-start’ advantages” and whether granting the request will discourage the other carrier to build out its own network. Other factors listed include: “whether the carriers involved have had previous roaming arrangements with similar terms; whether alternative roaming partners are available; events or circumstances beyond either carrier’s control that impact either the provision of automatic roaming or the need for roaming in the proposed area(s) of coverage; the propagation characteristics of the spectrum licensed to the requesting and would-be host carriers, including circumstances where the requesting carrier’s spectrum rights in an area are limited to higher spectrum frequencies where propagation characteristics are less advantageous than a host carrier’s licensed spectrum.” These factors are not exclusive and the FCC can also take into account “other special or extenuating circumstances,” the order said.

The order specifically rejects arguments by AT&T and Verizon Wireless that eliminating the home roaming exclusion would undermine facilities-based service or discourage competition based on coverage and service quality. “We agree that there are pro-competitive benefits that flow from carriers differentiating themselves on the basis of coverage in their licensed service areas, including in rural and remote areas,” it said. “However, we are not persuaded that replacing the current categorical home roaming exclusion with a case-by-case assessment of reasonableness, based on the reasonableness of a particular roaming request, will undermine these pro-competitive benefits.” In case of a dispute, “our consideration begins with the presumption that a request by a technologically compatible carrier for automatic roaming is reasonable.”