Free Press Takes on AT&T, Verizon on Need for Data Roaming Rules
Data roaming is critical to competition in a wireless market increasingly dominated by a few large carriers, Free Press said in reply comments at the FCC. Small carriers also urged the FCC to move forward quickly to mandate data roaming as recommended by the National Broadband Plan. Small and mid-sized carriers presented a united front last month in arguing that the FCC should use its authority under Title III of the Communications Act to impose a data roaming obligation on carriers similar to the one approved for voice in 2007 (CD June 16 p2). AT&T and Verizon Wireless countered that the commission cannot mandate data roaming as wireless is currently regulated.
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How quickly the FCC will act now that comments are in is unclear, FCC sources said Tuesday. “I would sense it’s gummed up because of the Comcast decision,” an agency official said.
"Although universal data roaming on reasonable terms will not by itself fix all of the problems that characterize the mobile broadband market, it is an essential component of effective reform,” Free Press said. “An increasingly concentrated industry with numerous obstacles to effective competition, including disparities in spectrum holding, exclusive and restricted access to popular smartphones, and challenges in securing backhaul on reasonable terms, has permitted a few dominant service providers to drive up the price of mobile broadband service as costs fall and profit margins soar. Consumers of mobile broadband services in the United States pay too much for poor service, and the market as a whole is beginning to suffer the consequences."
Almost all carriers support a data roaming mandate, said MetroPCS. “The vast majority of the wireless industry (along with numerous public interest groups) agree with MetroPCS that existing automatic roaming rights should extend to broadband data services,” the carrier said. “With the unsurprising exceptions of AT&T and Verizon Wireless, nearly every commenter in the proceeding voiced strong support for an automatic broadband data roaming right."
"More than 20 comments have been filed in this proceeding, and they reveal the near-unanimous view that an automatic data roaming obligation is both in the public interest and well within the Commission’s statutory authority,” Leap Wireless said. “Carriers of different sizes, geographic footprints, business models, and target customers all agree that data roaming is essential to promote competition and to provide consumers with the services that they expect and demand."
The Rural Cellular Association called data roaming “the fundamental building block to ensuring ubiquitous, nationwide broadband services to consumers and public safety. RCA added, “Every consumer in America expects their wireless phone to work in and outside their home network. Data roaming is a simple concept that ensures consumers will have connectivity throughout the United States. Ask any Member of Congress whether their constituents expect connectivity and if the FCC policy should encourage connectivity; the answers will be ‘yes.'"
But AT&T read the first round of comments differently, saying they “overwhelmingly confirm” that a data roaming mandate would violate the Communications Act. Commissioners Robert McDowell and Meredith Baker in particular questioned the FCC’s authority to mandate data roaming when the FCC approved the notice of proposed rulemaking at its April meeting (CD April 22 p4).
"Section 332(c)(2) expressly provides that non-interconnected mobile wireless services cannot be treated as common carriage ‘for any purpose under this Act,'” AT&T said. “That express statutory prohibition is the complete answer to this entire Notice, and none of the regulation proponents addresses this provision at all. … Accordingly, the commenters’ peripatetic wanderings through the Communications Act looking for other possible sources of authority are senseless.” Verizon Wireless agreed: “No party disputed that data roaming is not an interconnected service, which means, therefore, that section 332(c)(2) precludes the FCC from imposing common carrier obligations on these services."
AT&T and Verizon also countered arguments that data roaming is necessary given growing competition in the wireless markets. Proponents can only point to “speculative” harms, Verizon Wireless said. “The facts submitted demonstrate that, as Verizon Wireless predicted in 2007, market forces are working to make data roaming, including 3G data roaming, available to carriers that request such services. There is every reason to believe that the same evolution will occur for future data roaming capabilities, such as 4G. In short, the record belies any factual predicate for new roaming regulation.”