5th Circuit Tweaks Affirmation of FCC Denial of Worldcall Appeal in AT&T Dispute
A 3-0 court panel upheld FCC denial of Worldcall Interconnect's (WCX) appeal of an Enforcement Bureau decision AT&T didn't violate data roaming rules. The denial wasn't flawed under "highly deferential" Supreme Court Auer v. Robbins and circuit precedent. WCX "sought…
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and AT&T offered to provide" its commercial mobile data service (CMDS), wrote Judge Carolyn King, of the 5th U.S. Circuit Court of Appeals, Thursday in Worldcall v. FCC, No. 17-60736, making minor corrections to her Oct. 24 opinion. She noted CMDS providers "are required only to provide roaming agreements on commercially reasonable terms; they can discriminate in the terms." Judges reviewed the "determination of the commercial reasonableness of the rates," deferring to the agency. Assessing "the full weight of the evidence" to the FCC," we cannot say that the Commission’s decision was not supported by substantial evidence," King wrote for herself and Catharina Haynes. Concurring, Judge Jennifer Elrod would have concluded the data roaming rule applied "through a straightforward application of the regulation's text," not "through the labyrinth of Auer deference." Worldcall said it's "disappointed" but doesn't intend to appeal. "It is undisputed that under the rates approved in the agreement it is not feasible to roam on AT&T and offer a traditional competitive retail cellphone service," it emailed Friday. "You simply cannot pay a roaming partner more in roaming fees than you can charge a customer even when the roaming partner’s network is used well under 1/3rd of the time. ... This ruling means we must change how we negotiate with other carriers and it will limit our use of AT&T’s network when our customers and their devices roam."