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Last month, in response to a petition filed by T-Mobile USA, the FCC’s Wireless Telecommunications Bureau provided guidance and criteria in determining whether a data roaming agreement is “commercially reasonable” as required by the agency.
The Dec. 18, 2014 declaratory ruling may have put T-Mobile and other wireless carriers in a better position to negotiate roaming arrangements with AT&T and Verizon Wireless. In evaluating disputes over such agreements, the wireless bureau said it will consider how the offered data roaming rates compare to other rates, including U.S. data roaming rates charged by other providers.
AT&T argued in a Jan. 16 FCC filing that the wireless bureau ran afoul of principles that the agency outlined in a 2011 order and failed to provide companies guidance on how the FCC will apply the rulings in individual data-roaming disputes between wireless carriers.
“The result is a completely standardless approach to case-by-case adjudication that eliminates any ability to predict how the Commission might rule in any given complaint proceeding,” AT&T said in its application for review.
The FCC may well grant AT&T’s request for a review. Last month, the two Republicans at the FCC, Ajit Pai and Michael O’Rielly, said the five-member Commission should have voted on the item rather than leave the matter to the wireless bureau.
In a joint statement, Pai and O’Reilly said T-Mobile had asked the Commission – not the wireless bureau – to provide guidance on wireless data roaming concerning its interpretation of its 2011 wireless data roaming order.
“FCC decisions issued on the Bureau level cut the Commissioners out of the decision-making process entirely,” the commissioners said.
AT&T and Verizon both claimed the wireless bureau violated the federal Administrative Procedure Act by sidestepping the rulemaking process.
“The changes to the Data Roaming Order must also be made by the full Commission – not by the Bureau,” Verizon added in its Jan. 20 application for review. “The Bureau has no authority to modify a Commission order or reconsider the policy basis for it.”
In 2011, the FCC adopted a rule that required facilities-based providers of wireless service to provide data roaming on commercially reasonable terms and conditions. Under then-FCC Chairman Julius Genachowski, the agency found the data-roaming regulation was necessary because wireless carriers encountered difficulties obtaining roaming arrangements from the national wireless providers on 3G networks.
AT&T and Verizon opposed the data-roaming regulation before it was adopted, arguing that wireless carriers could obtain nationwide coverage without regulatory intervention. Verizon later challenged the regulation in court and lost.