FCC adopts data roaming order

The Federal Communications Commission today adopted an order requiring wireless carriers to enter into data roaming agreements on reasonable terms and conditions—a move that smaller wireless carriers will welcome. But two of the five commissioners voted against the order, raising concerns about the commission’s authority to impose such obligations.

FCC to resolve disputes
The order will “spur investment and competition” in mobile wireless, said FCC Chairman Julius Genachowski at today’s FCC meeting where the new order was adopted. In some rural areas, he said, mobile data networks may not be built unless data roaming is required.

Commissioner Mignon Clyburne added that data roaming is even more critical today, now that industry consolidation has created a situation in which the largest mobile operators “might use their increased market power to . . . restrict access to competitors.”

The order calls for carriers to negotiate their own roaming deals with one another, but also establishes a complaint process with the FCC. The dispute resolution process could require carriers to submit their best offers to the FCC, which would use that information to establish data roaming terms and conditions between the two carriers.

Dissenters
Using an argument that by now should be familiar to telecom stakeholders, Republican FCC commissioners Robert McDowell and Meredith Atwell Baker argued that mobile data services are not common carrier, or Title II, services and therefore the commission does not have authority to impose data roaming obligations on mobile operators. The commission also lacks authority over mobile data because it is a private mobile service, not a commercial mobile service, McDowell and Baker argued.

FCC General Counsel Austin Schlick attempted to negate those arguments by asserting that data roaming does not constitute common carriage because the FCC is not setting common terms and pricing for all carriers but instead is allowing them to negotiate individual deals with one another.

In a statement, AT&T Senior Vice President of Federal Regulatory Bob Quinn stopped short of saying the company would challenge the data roaming order. But he also left the door open for that possibility. “We continue to believe that a data roaming order is unwarranted and will discourage investment and build out of broadband facilities,” said Quinn in the statement.

Pole attachment and rights of way
Less controversial were two other items adopted unanimously by the FCC today. One was an order establishing guidelines to expedite pole attachment with the goal of speeding broadband deployment and reducing deployment costs, particularly in rural areas. In addition the FCC adopted what it is calling a “broadband acceleration notice of inquiry” aimed at determining how to enable communications network operators to promptly obtain access to rights of way and identifying other best practices to support network construction.