FCC Eliminates “Home Market” Exclusion from Mobile Voice Roaming Requirement and Issues Further Notice of Proposed Rulemaking on Mobile Data Roaming

April 23, 2010

On April 21, the Federal Communications Commission (FCC) adopted an Order on Reconsideration eliminating the “home market” exclusion from the requirement for host carriers to provide automatic mobile voice roaming. The FCC also issued a Second Further Notice of Proposed Rulemaking (“FNPRM”) asking for comment on a proposal to require automatic roaming for mobile data services.

Order on Reconsideration

The FCC’s Order eliminates an exclusion to the requirement adopted by the FCC in 2007 that host Commercial Mobile Radio Service (CMRS) carriers provide automatic mobile voice roaming to CMRS carriers upon reasonable request. The exclusion in the 2007 order provided that host CMRS carriers were not required to provide automatic roaming in markets where the requesting carrier holds a spectrum license or spectrum lease. In eliminating this “home market” exclusion and ordering host CMRS carriers to offer automatic roaming to CMRS carriers in their home markets, the FCC Order pointed to three policy goals underlying its decision:

  • Seamless nationwide coverage for consumers;
  • Promotion of competition; and
  • Incentives for investment and innovation.

The FCC found that automatic home roaming was subject to the Sections 201 and 202 Communications Act requirement to provide service upon reasonable request and prohibition of unreasonable discrimination, and that the Commission would address roaming disputes on a case-by-case basis. The FCC stated that it will presume, in the first instance, that a request for automatic roaming that is technologically compatible is reasonable. However, this presumption of reasonableness can be rebutted by the host carrier.

The FCC order contains a non-exclusive list of factors to be used in resolving roaming complaints. These include:

  • The proposed terms and conditions;
  • The level of competitive harm and the benefits to consumers;
  • The extent and nature of the requesting carrier’s build-out, including the length of time the requesting carrier has had to accomplish its build-out;
  • Economic factors, including feasibility of build-out by the requesting carrier and the head-start advantages of the host carrier;
  • Whether the requesting carrier is seeking roaming in an area where it is already providing service;
  • Whether the carriers have had previous roaming arrangements with similar terms;
  • Alternative roaming partners;
  • Events or circumstances beyond either carrier’s control;
  • The propagation characteristics of the carriers and whether the requesting carrier holds less advantageous spectrum; and
  • Other special or extenuating circumstances.

The Order also denied a petition for reconsideration filed by Sprint asking that the FCC reverse its earlier requirement requiring that push-to-talk roaming must be provided upon reasonable request.

Second Further Notice of Proposed Rulemaking

The FCC also issued a broadly based FNPRM requesting comment on whether to require automatic roaming for mobile data services, including mobile broadband Internet access. As is the case for voice roaming, the FNPRM explained that the same three principles of seamless coverage, competition, and investment and innovation form the policy foundation for whether to require automatic data roaming. The FNPRM specifically asked whether any requirements adopted should apply not only to CMRS carriers providing mobile data services, but also to providers of mobile data services that do not offer CMRS.

The FNPRM explained  that there has been a rapid evolution of the wireless broadband data market since the first Further Notice on data roaming was issued in 2007, and a refreshed record is needed to address these changes. In addition to seeking comment on substantive public policy questions, the FNPRM seeks comment on the jurisdictional foundation for enacting automatic data roaming requirements in light of the recent Court of Appeals decision in the Comcast broadband case.

If you would like to see a requirement for the provision of automatic roaming for mobile data services and have ideas on how the requirement should be structured, we encourage you to participate in the rulemaking proceeding. Comments are due 45 days after Federal Register publication, and replies are due 75 days after publication.

We would be pleased to discuss this item further with you and  assist you with your comments and replies.

Andrew D. Lipman, Partner, 202.373.6033

Catherine Wang, Partner, 202.373.6037

This article was originally published by Bingham McCutchen LLP.