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FCC Wins Data-Roaming Decision

FCC Wins Data-Roaming Decision 12/09/2012 7:00 PM Eastern

WASHINGTON — A U.S. appeals court last week rejected Verizon Wireless’ challenge to the Federal Communications Commission’s data-roaming rules, finding that the agency had authority to force cellular broadband providers to make their networks available to other providers via roaming agreement.

That same court — the U.S. Court of Appeals for the D.C. Circuit — will decide whether the FCC has the authority to impose network-neutrality obligations on wired Internet providers. But experts disagreed as to what the broadbandroaming decision signals for that case.

The D.C. Circuit last week suspended its briefing schedule on the network-neutrality challenge, filed by Verizon and fellow cellular provider MetroPCS, to allow those companies to digest the impact of the roaming decision. It said the FCC had performed “a thoughtful and nuanced balance of the costs and benefits of the data-roaming rule.”

The FCC rule in question required mobile data providers to offer roaming agreements to competitors on “commercially reasonable” terms, one of many FCC actions to spur mobile broadband deployment.

Verizon challenged the requirement, saying the FCC lacked the authority to issue that mandate and that it treated mobile Internet access as a commoncarrier service.

The court did not agree. “Title III of the Communications Act of 1934 plainly empowers the Commission to promulgate the data-roaming rule,” Judge David Tatel wrote. “And although the rule bears some marks of common carriage, we defer to the Commission’s determination that the rule imposes no common-carrier obligations on mobile-Internet providers.”

Had Verizon won, it would have had to wait a while to benefit from a victory. To gain FCC approval for its purchase of wireless spectrum from cable operators, Verizon had agreed to abide by the data-roaming mandate even if the court had thrown it out.

“This unanimous decision confirms the FCC’s authority to promote broadband competition and protect broadband consumers,” agency chairman Julius Genachowski said in a statement. “Enacting data-roaming rules is one of many strong actions the FCC has taken in this area, and we will continue to promote broadband investment and innovation.”

But while the chairman saw the ruling as a broad stamp of approval of the FCC’s broadband authority in general, Scott Cleland, chairman of trade group Netcompetition.org, had a different view.

“In upholding the Data Roaming Order, the court was faced with a set of facts where the FCC already had clear authority to require mobile-voice roaming and the question was whether the FCC had enough authority to extend it to data roaming,” Cleland blogged. “Nevertheless, the court warned the FCC to not try and overreach beyond the narrow boundaries that the court allowed.

“Simply, the court gave the FCC more leash in this set of circumstances, but still warned they remained on the court’s leash,” Cleland said.

The court certainly indicated it would not take kindly to the FCC’s treatment of broadband providers as common carriers. “Should the commission apply the data roaming rule so as to treat Verizon as a common carrier,” it said, “Verizon is free to return to court with an ‘as applied’ challenge. In implementing the rule and resolving disputes that arise in the negotiation of roaming agreements, the commission would thus do well to ensure that the discretion carved out in the rule’s text remains carved out in fact.”

Attorney Andrew Schwartzman, who signed on to comments support ing data roaming at the FCC, said he believes the ruling “bodes well” for the agency’s defense of network neutrality.

“That case raises similar issues about the breadth of FCC jurisdiction, the nature of common carriage and whether the FCC’s action is a taking of private property,” he said.

Schwartzman also pointed out that the decision was written by the same judge who rejected the FCC’s position in Comcast’s lawsuit related to peer-to-peer filesharing service BitTorrent, the case that prompted the FCC to codify its network-neutrality rules.

TAKEAWAY

The FCC’s appeals court win on data roaming could affect a pending challenge to the agency’s net-neutrality regime.

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