Divided FCC Approves Data Roaming Rules

Republican commissioners opposed to move; say FCC does not have authority
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The FCC voted 3 to 2 on a straight party line Thursday to extend its voice roaming oversight to data roaming agreements as one of a number of steps it took at its monthly public meeting Thursday to promote broadband, wired and wireless.

Republican commissioners were strongly opposed to the move, saying the FCC does not have authority to determine rates or conditions of those private agreements and that the decision is tantamount to imposing common carrier regs on the data service.

The chairman countered that that was "flat wrong," and pointed out that only the two major wireless carriers, AT&T and Verizon, were opposing what he suggested was a logical and light-touch extension of the roaming rules, echoing his characterization of the network neutrality reg compromise vs. Title II classification.

He said there was a powerful logic to updating the rules to include data roaming, which consumers have come to expect. He also said the record showed that those deals "were simply not being widely offered on commercially reasonable terms." He said some providers were refusing to make deals or unduly delaying them.

Among those supporting the move was the National Cable & Telecommunications Association, which said in response to the vote Thursday 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."

Cable operators, Cox and Clearwire most notably, are among those carriers who will benefit from extending the roaming rules, which will require negotiations on "commercially reasonable" terms, subject to FCC oversight on a case-by-case basis.

Republican Commissioners Robert McDowell and Meredith Attwell Baker argued that substituting the "commercially reasonable" standard for the "fair and reasonable" standard under common carrier regs did not change the essential common carrier nature of the move, which they said would involved the FCC setting rates and terms, authority it does not have over information services.

Republican Commissioner Meredith Attwell Baker said the reason the deals were not being done were that they would not come to terms on price, suggesting the FCC would be effectively setting those terms an

"The U.S. wireless communications marketplace is one of the most dynamic, competitive and innovative in the world,"s aid Verizon."Consumers have many choices in wireless products and services and expect that these services will be available wherever they go. To meet these customer expectations Verizon has entered into more than 40 data-roaming agreements with our competitors - big, small, urban and rural. We have also formed an industry-leading spectrum-sharing partnership with rural carriers to expand the reach of 4G services in rural areas."d could prompt artificially low rates that discourage the build of "the next tower" and could thus actually be a disincentive to wireless facilities deployment.

FCC General Counsel Austin Schlick said that the order allows carriers to negotiate individually rather than requiring standard terms across the board, which distinguished it from common carrier regs.

The order also allows those deals to require comparable service between the facilities-based provider and the carrier seeking the roaming agreement, and allows for taking into account possible congestion and network-management and compatibility issues.

While McDowell suggested the decision was another one that could invite a court smackdown, Genachowski said that of 16 court decisions on direct challenges to FCC statutory authority, the FCC had prevailed on 15 of them. The defeat was a key one, however, the BitTorrent decision that raised questions about the FCC's authority over Internet access.

"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," said AT&T in response to the vote. "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."

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