Small Carriers Push for Data Roaming Obligations as Vote on Order Looms

The order applies Communications Act sections 201 and 202 to roaming. The order applies the obligation only to data that touch the PSTN, sources said, who said the provision is considered confusing. Smaller carriers led by SouthernLinc have argued that roaming obligations must also apply to data (CD July 5 p6) considering the proportion of carrier revenue they produce relative to voice.

“We are hearing that the order will not apply to wideband data unless it touches the PSTN,” said a regulatory lawyer who advocates tough roaming rules. “That is a great concern to smaller carriers, of course. I am hearing the Commission may go forward with the draft and take this up again in another six months, but that is a concern to us and we would prefer to see the matter delayed rather than handled insufficiently.”

“The companies who have been pressing the roaming issue are very pleased that the commission appears to be willing to take action and not allow the issue to languish for years as has happened in the past,” another regulatory lawyer said. “However, the proposed rules don’t go as far as the proponents would like, particularly in terms of setting some guidelines or default rates. Some carriers… are particularly disappointed about the treatment of data roaming.”

Sections 201 and 202 in Title II lay out the obligations of common carriers. Section 201 sets their duty to provide communications services on reasonable request and at reasonable rates, terms and conditions. Section 202 makes illegal unjust or unreasonable discrimination in charges, practices and services.

“What we would ideally like for the FCC to clarify in the roaming proceeding is that roaming is a common carrier service subject to sections 201 and 202 -- meaning that carriers are obligated to make roaming available upon reasonable request, under reasonable rates, terms, and conditions, and without engaging in unjust or unreasonable discrimination in terms of how they enter into roaming arrangements with various other carriers,” said an attorney whose company has been active in the proceeding. “With these two legal requirements firmly established, the way would be clear for carriers to file Section 208 complaints at the FCC for violations under the Communications Act.” The attorney said her company has urged that the obligation apply to all data, not just those that touch the PSTN.

The commissioners and aids have spent so much time on 700 MHz in recent weeks that they have spent relatively little hashing out the details of the roaming order, sources said. “I think a lot of offices may not feel ready to grapple with this one too, beyond a high level grappling,” said a lawyer who has followed the roaming proceeding. “That may cause various offices to want to delay this one. That wouldn’t surprise me at all. But it would be hard to make everybody happy… It depends on how much time and effort they want to put into it or if they feel that all things considered this is probably as good as it gets. Let’s move it on and get onto the next 100 items.”

Jessica Zufolo, an analyst with Medley Global Advisors, said she understood that the data obligations include push-to-talk and SMS, but not mobile broadband.

By putting both the 700 MHz item and changes to the automatic-roaming rules on the agenda, FCC Chairman Kevin Martin was trying to “give something to everyone” and “decrease the likelihood of a court challenge to either,” Medley said in a report. “The way to sweeten it on 700 MHz is to sweeten it on roaming,” Zufolo told us. “A lot of this is a way to buttress support for the main event, which is the 700 MHz item.” -- Howard Buskirk

700 MHz Notebook…

As the FCC considers its rules for the 700 MHz band, Verizon disavowed reports that it has accepted FCC Kevin Martin’s open access plan. Responding to FCC Commissioner Robert McDowell, Verizon reiterated twice its opposition to the open access rules. The rules if adopted “would be unsupported by the record, would squarely conflict with recent commission decisions on wireless and other broadband services, and would raise serious legal issues,” John Scott, Verizon Wireless vice president & general counsel for regulatory law, wrote in an ex parte filing. “The commissioner was informed that press reports that Verizon Wireless no longer opposed such proposals were incorrect.” -- HFW

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House Commerce Committee Chairman John Dingell, D-Mich., plans to put out a statement commenting on the FCC’s 700 MHz rules after the Tuesday’s meeting, a committee spokeswoman said. During the House Commerce Telecom Subcommittee hearing July 24, Dingell praised the Commission’s proposed open access rules, which would allow device portability for a portion of the spectrum. Subcommittee Chairman Ed Markey, D- Mass., also gave a nod to Martin on his proposal. Republicans expressed concern about the risk to auction revenue. Many lawmakers are keeping a close eye on the commission’s meeting. -- AV

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The top priority in the 700 MHz auction should be providing rural America low-cost broadband, Sen. Byron Dorgan, D-N.D., told the FCC in a letter released Monday. The FCC’s current plan “opens the door,” but build-out requirements are needed to ensure coverage of rural and urban areas, said the letter sent Friday. Dorgan said the FCC has the “valuable and unique opportunity to improve America’s position as a world technology leader” by crafting 700 MHz auction rules that speed delivery of broadband to more Americans. The senator, like other Democrats, also argued in favor of open access rules, which would allow consumers to take phones from one wireless carrier to another. He supported a wholesaling provision -- which Martin doesn’t support -- that he said would “open the door for a wave of new products and services.” The letter also emphasized that public safety needs a national network that deals with interoperability.

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The National Telecom Cooperative Association called on Senate Commerce Committee leaders to urge FCC consideration of a proposal for the upper 700 MHz band that was offered by U.S. Cellular. The proposal suggests that the 22 MHz of the upper band that the FCC designates for open access requirements be further split into two blocks -- one of 12 MHz and one of 10 MHz. The 12 MHz, which would be distributed according to rural economic area groupings, would have open access requirements and allow package bidding. The other 10 MHz would be distributed according cellular market areas with open access requirements but no package bidding. NCTA and the Rural Telecommunications Group have concerns about the open access concept, the groups told Sens. Daniel Inouye, D-Hawaii, and Ted Stevens, R-Alaska, in a letter sent Monday. But they said their proposed plan “provides the potential for companies of all sizes to compete for additional portions of this unique spectrum.”

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FCC Chairman Kevin Martin’s plan for the 700 MHz band to produce a nationwide broadband wireless entrant is likely to fail, according to a research note from Stifel Nicolaus. “We think it is unlikely that a new national player or independent wireless infrastructure emerges,” the firm said. “Nor do we think that other potential national players such as the digital broadcast satellite providers or cable operators will make significant bids. Further, we see no momentum in capital markets to fund new players to take on the incumbents under this set of rules.”

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Language proposed recently by Google and Skype isn’t the open access envisioned by the Public Interest Spectrum Coalition, it told Renee Crittendon, an aide to FCC Commissioner Jonathan Adelstein. Under the proposal, the open access licensee “could still refuse to carry VoIP traffic on broadband on the grounds that this was not a ‘commercial mobile radio services-type service’ and that the terms of service precluded use of VoIP,” wrote Harold Feld, senior vice president of the Media Access Project and PISC member.

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Access Spectrum, Pegasus and Radiofone Nationwide PCS agreed to turn back their 700 MHz Guard Band B-block licensees if the FCC adopts a band plan to their liking, they told the FCC. Similarly, Access Spectrum, Pegasus and Dominion 700 agreed to have their 700 MHz Guard Band A-block modified, they said.