FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,483
viii, 4843-5761 p. ; 28 cm.View a full description of this book.
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Federal Communications Commission
DISSENTING STATEMENT OF
COMMISSIONER ROBERT M. McDOWELL
Re: Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and
Other Providers of Mobile Data Services, WT Docket No. 05-265.
My colleagues and I agree that America's consumers expect that their mobile data services of
today and tomorrow will work seamlessly wherever they go. Certainly it is important that all consumers,
no matter where they live, work or travel, have the ability to benefit from the most advanced wireless
services in a competitive market. I recognize and appreciate the complicated policy, legal and economic
factors involved with the data roaming issue. I am grateful to the many proponents of today's rules for
sharing their important insights and marketplace experiences with me. And, I also thank the Chairman for
his diplomacy and graciousness in attempting to forge, in his view, a streamlined order that I know is
motivated by the best of intentions. I am also grateful for the efforts of those companies that are
continuing to reach roaming agreements, including for data services. The record reflects that numerous
carriers seeking regulatory relief today have, in fact, struck many new deals.
I also agree with my colleagues that many benefits flow from the widespread availability of data
roaming. Nonetheless, the Commission simply does not have the legal authority to adopt the regulatory
regime mandated by this order. Accordingly, I regret that I cannot vote to approve today's order.
Even though the order attempts to explain otherwise, in mandating the provision of data roaming
and establishing a means for dispute resolution that includes adjudicating terms and rates, my colleagues
in the majority are, in essence, imposing a Title IT common carrier regulatory regime in violation of Title
III of the Communications Act and contrary to Commission precedent.
The effort to justify characterization of today's action as something other than a common carriage
decision is understandable, for the law compels it. The problem, however, is that data roaming is what
the law sees as a "private mobile service." In other words, the service is considered a "mobile service"
under the Act, but not a "commercial mobile service or the functional equivalent of a commercial mobile
service."' Because data roaming is not a commercial mobile service, Section 332(c)(2) of the Act
prohibits the Commission from subjecting the provision of data roaming to common carrier regulation.2
Under this rubric, the Commission in 2007 unanimously concluded that provision of wireless broadband
Internet access service is an "information service" and that data roaming service must be "free from
common carrier regulation."3
In establishing new regulations for roaming arrangements among commercial mobile data service
providers, today's order goes to great lengths to argue that authority is pursuant to, and consistent with,
Title Ill of the Communications Act. New rule Section 20.12(e)( 1) states that a facilities-based provider
of commercial mobile data services is required to offer roaming arrangements on "commercially
reasonable" terms and conditions. The rule also provides that service providers will have discretion to
47 U.S.C. 153(33), 332(d)(3).
247 U.S.C. 332(cX2).
" Appropriate Regulatory Treatment of Broadband Access to the Internet Over Wireless Networks, Declaratory
Ruling, 22 FCC Rcd 5901, 5921 54 (2007).5483
FCC 11-52
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc52169/m1/655/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.