Appeals Court Rejects Verizon Data Roaming Appeal

Says FCC Rule Imposes No Common Carrier Obligations on Mobile Net

A federal appeals court has rejected Verizon's challenge to the FCC's data roaming rules.

In a decision released Tuesday, the U.S. Court of Appeals for the District of Columbia 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 requried mobile data providers to offer roaming agreements to competitors on “commercially reasonable” terms, one of many FCC actions to try and spur mobile broadband.

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

The court did not agree.

"We disagree on both counts. Title III of the Communications Act of 1934 plainly empowers the Commission to promulgate the data roaming rule," wrote Judge David Tatel. "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. In response to Verizon’s remaining arguments, we conclude that the rule does not effect an unconstitutional taking and is neither arbitrary nor capricious. We therefore reject Verizon’s challenge to the data roaming rule."

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