Roaming Order’s In-Market Provision Bad News for Some Carriers
Language in the FCC’s roaming order, released last week after approval at an Aug. 7 meeting, could spell trouble for carriers who bought spectrum in the advanced wireless services auction (AWS) and now must wait for the spectrum to be cleared to build out their systems, officials said. The sweeping wording of the text was broader than some feared, based on comments at the FCC meeting (CD Aug 8 p1).
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The implications are especially significant for fast-growing MetroPCS and Leap, the two smaller carriers who bought the most spectrum in the AWS auction, since clearing the spectrum of incumbents is expected to be a long, slow process, officials said. MetroPCS was the top bidder for a massive regional licenses covering the entire Northeast. T-Mobile, the big winner in the AWS auction overall, is potentially affected, though it has greater spectrum across many more markets than the smaller carriers.
The provision in question was mentioned but only briefly during the FCC meeting and came as a surprise to many carriers. The order was much more specific. It clarifies that when a carrier has spectrum in a market a another carrier is not required to comply with a roaming request. “This in-market or home roaming exclusion does not depend on the level of service the requesting CMRS carrier is providing in the overlapping geographic area,” the order said. “The exclusion applies regardless of whether the requesting CMRS carrier is providing no service, limited service, or state-of-the-art service.”
“We were surprised and disappointed to see how broad the language is that denies a carrier the right to get automatic roaming in any area where it holds a wireless license regardless of the state of construction,” said a lawyer who has been active on roaming. “This works as a particular hardship on carriers seeking to enter new markets on AWS spectrum… The commission rule could deny roaming in areas where it is sorely needed while the new entrant is working diligently to build out its own system.” Another lawyer said the language seems pretty clear. “I'm not sure the FCC meant to do something that would hurt the few companies who are most invested in AWS spectrum,” said the lawyer. “But whether they'll be open to modifying the order remains to be seen.”
Other carriers who have pushed roaming reform were generally pleased with the order as published. “The commission took an important, pro-consumer step in clearly establishing that automatic roaming is a common carrier service, subject to sections 201 and 202 Title II obligations of non-discriminatory treatment and reasonable rates and terms,” said SouthernLINC Wireless lawyer Holly Henderson. “The commission’s action to extend the automatic roaming rules to SMS and push-to-talk services, in addition to voice, was a very consumer-affirmative one.” Henderson said her company hopes the FCC will act promptly to extend roaming obligations to all data.
“The new commission rule imposing a duty to provide automatic roaming where there is technical compatibility between carriers is an important step forward for consumers and rural carriers,” said David Nace, general counsel to the Rural Cellular Association. “RCA hopes the commission will finish the job by acting promptly on the rulemaking notice and allow consumer access to broadband data when they travel within the U.S.”
The FCC published with the order a rulemaking seeking advice on whether to expand the roaming mandate to cover all data, including wireless broadband, as smaller carriers roll out advanced services. The commission, as expected, asked a handful of questions but drew no tentative conclusions. Most sources agreed that only Commissioners Michael Copps and Jonathan Adelstein now favor extending roaming obligations.
“To what extent, if any, would requiring roaming access to non-interconnected services and features undermine carriers’ incentive to innovate, or to invest in mobile wireless broadband network facilities?” the rulemaking asked. “If the Commission were to extend automatic roaming obligations to non-interconnected services and features, are there any special issues (technical, economic, or otherwise) associated with roaming among data networks that may not exist when roaming among CMRS carriers’ interconnected voice networks? For example, are there any issues regarding network capacity, network integrity, or network security?”
Interested parties will have 60 days to file comments after the decision is published in the Federal Register. Replies are due 90 days after publication.