The Federal Communications Commission can compel commercial wireless carriers to provide data roaming arrangements, according to a ruling by the U.S.Court of Appeals for the District of Columbia Circuit in a lawsuit brought by Verizon Wireless.
When small carriers began to run into difficulties persuading larger rivals to make reasonable data roaming relationships, the Federal Communications Commission started to consider regulation. Verizon Wireless and AT&T both opposed data roaming regulation on the basis that the Commission lacked the statutory authority to do so. They also protested that roaming agreements should be voluntary, because otherwise the small carriers would benefit at the expense of the larger ones.
Still, the FCC adopted a Data Roaming Order in April 2011 that required “providers of commercial mobile-data services to offer data roaming agreements to other such providers on commercially reasonable terms and conditions, subject to certain limitations,” according to the circuit court ruling.
The rule allows companies to negotiate the terms of such agreements on an individual basis and lets carriers off the hook for providing data roaming where it is not technically feasible.
Verizon responded with a lawsuit challenging the FCC’s authority to make the data roaming rule, arguing that the Commission was overstepping its statutory authority and could only compel mobile operators to arrange voice roaming agreements, not mobile data, as “common carriers.” According to the court’s ruling, “Verizon made its position crystal clear: because the company does not qualify as a common carrier with respect to mobile-data services, the Commission has no authority to compel it to permit other providers’ subscribers to roam on its network.”
However, the court found that since Verizon can tailor and negotiate data roaming agreements and is not forced to offer service indiscriminately and on general terms, the data roaming rule does not relegate it to common carrier status. The court and FCC both acknowledged that mobile data is fundamentally different from voice and that mobile-data providers are immune to being treated as common carriers. But the FCC still can require that data roaming arrangements be made when feasible, the court ruled.
The court’s decision was a unanimous 3-0 ruling.
“The court made it clear that Title III of the Communications Act of 1934 ‘plainly empowers the Commission to promulgate the data roaming rule,” said Carri Bennet, general counsel for the Rural Telecommunications Group. “Verizon Wireless’ repeated efforts over the last two years to assert anything else have been an exercise in futility. … RTG is grateful that justice has been served and the American consumers have come out the clear winners in this completely unnecessary legal battle.”
The Competitive Carriers Association also cheered the court’s decision.
“We are extremely delighted with the court’s decision,” said CCA President and CEO Steven K. Berry. “The fact that the court made such a prompt and well-reasoned decision, at least in my mind, is a clear and convincing indication of the overwhelming strength of the intervener and FCC arguments presented to the court.”
He went on to say that the decision “is a decisive victory for consumers and an extremely positive outcome for competitive carriers and competitive policies. … This is one important piece of the puzzle to ensure competitive carriers may deploy 4G LTE services to consumers across the nation.”
The Interoperability Alliance followed up the court’s ruling with a statement pointing out that since the FCC’s data roaming rules have been upheld, “there is nothing standing in the way of the Commission’s efforts to unshackle the lower 700 MHz band and restore interoperability, which will help support 4G roaming in the lower 700 MHz band.
“Data roaming requires interoperability,” the group noted. “So without it, the FCC’s rules on data roaming will not reach their true potential.”
