FCC Seen as Leaning Toward More Changes in Automatic Roaming Rules
AT&T and Verizon Wireless urged the FCC to reject petitions to reconsider its revised roaming rules, filed last month. The Bells said the petitions would reopen questions resolved by the agency. But with AT&T and Verizon essentially lined up against the rest of the wireless industry, industry sources said Wednesday the FCC appears poised to eliminate or at least limit the “home roaming” exclusion. Under it, a carrier doesn’t have to honor a request from a counterpart with spectrum in a market, even if the spectrum hasn’t been cleared to allow network buildout. Commission sources agreed that the agency is likely to limit the exception.
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Oppositions were due this week on petitions filed by Leap Wireless, MetroPCS SpectrumCo, Sprint Nextel, and T-Mobile asking for further changes in its roaming rules, especially elimination of the in-market exclusion (CD Oct 2 p5).
An attorney for a carrier seeking elimination of the exclusion said the FCC didn’t into account the exclusion’s harm to carriers that bought spectrum in last year’s advanced wireless services auction, which could take years to clear. “I don’t think this received a lot of attention on the eighth floor and, almost to an office, there was an acknowledgment that there’s a lot of problems with the in-market exception,” the attorney said. “What we are saying is for a lot of reasons you should eliminate the exception in its entirety.”
FCC officials seemed to acknowledge they need to address the issue before the 700 MHz auction starts in January, the attorney said. “The in-market exception could affect bidding behavior in the auction,” the source said. “If you knew that your ability to roam was going to be jeopardized by new spectrum assets that you acquired that are going to take time to build out that could definitely affect your bidding behavior.”
“I think it has a good shot at being modified,” said an attorney for rural carriers. “We have had some preliminary discussions indicating that there is some sympathy [because of] the harshness of the rule.” A third regulatory attorney said: “I understand there is sympathy for the idea that some of the home roaming rules could be loosened at least to take into account the delayed ability to enter caused by the federal government’s less than rapid relocation from AWS.” But a fourth attorney said he doesn’t expect quick commission action. “The FCC usually doesn’t rush out and resolve petitions for reconsideration right away unless there is an urgent need to do so, and that may be a hard case to make here.”
“The FCC’s exclusion gives large carriers a right to deny roaming to a carrier in the home market, no matter how reasonable the request, based solely on having rights to spectrum in a market,” said the Rural Telecommunications Group and the Organization for the Promotion and Advancement of Small Telecommunications Companies in recent comments filed at the FCC. “Thus, even where a carrier has not yet built out its system, a large carrier may deny roaming. The exclusion will foster anticompetitive conduct in roaming negotiations by enabling incumbents with market power to disadvantage new entrants, contrary to the reasons for the FCC adopting a roaming requirement in the first place.”
In their oppositions, AT&T and Verizon Wireless said the commission shouldn’t change the rules, approved at the Aug. 7 meeting (CD Aug 8 p1). “The Commission has recognized that petitions for reconsideration should be based on new facts or new arguments which could not have been made during the proceeding,” AT&T said. “The Commission, however, has already considered and rejected this very argument, reaching the opposite conclusion -- that imposing a home roaming requirement would impair competition.”
AT&T said the FCC “got it right” in the order. “Petitioners have presented no arguments to support a home roaming requirement that could not have been raised in their original comments or elsewhere in the record before the Commission.” The in-home exclusion will promote rather than hinder competition, AT&T said: “A company should not be able to take advantage of its competitor’s investment in network infrastructure and build-out in areas where it could have made the same investments.”
“Regulation of roaming in home markets is not necessary because market forces will continue to work to ensure that carries that desire roaming arrangements will be able to secure those arrangements,” Verizon Wireless said.