On April 7, 2011, the Federal Communications Commission (FCC) adopted by a 3-2 vote and released its Second Report & Order in its docket reexamining the roaming obligations of CMRS and other mobile data service providers. Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, WT Docket No. 05-265, Second Report & Order, FCC 11-52 (rel. Apr. 7, 2011) (available here). The Order requires all facilities-based providers of commercial mobile data services to offer data roaming arrangements to other such providers on “commercially reasonable terms and conditions,” subject to certain limitations. Para. 1.
Entities required to enter into roaming agreements under the new rules include all facilities-based providers of “commercial data services.” Commercial data services are defined as any mobile data service that is not interconnected with the public switched network but is (1) provided for profit and (2) available to the public or to such classes of eligible users as to be effectively available to the public. Para. 41. The requirement applies to all providers of such services, including wholesale providers, regardless of whether or not the provider also offers voice service, and without regard to the mobile technology utilized to provide the services or to the device used by the subscriber to receive the services. Id.
The rules allow commercial data services providers to negotiate the terms of roaming agreements with requesting providers on an individualized basis. Para. 43. Further, the rules permit commercial data services providers to:
- refuse to enter a data roaming arrangement with a requesting provider that is not technologically compatible; Para. 46.
- refuse to enter into data roaming arrangements where it is not technically feasible to provide roaming for the particular data service for which roaming is requested; Para. 47.
- refuse to offer data roaming agreements for specific services where the network changes necessary to provide roaming services are not economically reasonable; Id.
- condition the provision of data roaming services to a requesting provider on the requesting provider’s provision of services to its own subscribers using a generation of wireless technology comparable to that used by the commercial data services provider; Para. 48.
- negotiate commercially reasonable measures to safeguard quality of service against network congestion. Para 52.
To resolve disputes during negotiations, the Order establishes a complaint process similar to the complaint process available under current mobile voice roaming rules. Specifically, parties may file an informal complaint, a formal complaint, or a petition for declaratory ruling under the Commission’s rules to resolve any disputes arising out of the data roaming requirement. Para. 75. During negotiations involving the Commission, the Commission staff may require both parties to provide to the Commission their best and final offers, with the Commission to decide between the two positions. Para. 79. All such negotiations or arbitrations shall be handled initially by the Enforcement Bureau. Para. 82.
In arbitrating disputes, the Commission will assess on a case-by-case basis whether a service provider’s conduct, including any refusal to negotiate, or its proposed service offerings constitutes commercially reasonable positions. Para. 85. Among the factors the Commission may consider in making this determination are:
- whether the host provider has responded to the request for negotiation in a timely manner;
- whether the terms and conditions offered by the host provider are so unreasonable as to be tantamount to a refusal to offer a data roaming arrangement;
- the existence and terms of any roaming arrangements the parties have with each other, including roaming arrangements for interconnected services such as voice;
- whether the providers involved have had previous data roaming arrangements with similar terms;
- economic factors, including whether building another network in the geographic area may be economically infeasible or unrealistic;
- whether the requesting provider is seeking data roaming for an area where it is already providing facilities-based service;
- the impact of the terms and conditions on the incentives for either provider to invest in facilities and coverage, services, and service quality;
- whether there are other options for securing a data roaming arrangement in the areas subject to negotiations and whether alternative data roaming partners are available;
- events or circumstances beyond either provider’s control that impact either the provision of data roaming or the need for data roaming in the proposed area(s) of coverage; and
- the propagation characteristics of the spectrum licensed to the providers;
Paras. 86-87. Under the rules, the Commission is also free to consider the “totality of the circumstances presented in each case” in resolving disputes. Id.