During oral arguments on an appeal brought by Verizon Wireless, members of the D.C. Circuit Court appeared to sympathize with the FCC’s claim that the Commission acted within its authority in adopting data roaming rules, as they voiced doubts about Verizon’s contention that the FCC’s order improperly subjects mobile operators to common carrier regulation. Approved last year by a 3-2 vote, the rules in question require facilities-based wireless carriers to offer data roaming on “commercially reasonable terms and conditions, subject to certain limitations.” Under the rules, data roaming agreements may be contingent upon compatible technology, individualized for different parties, and subject to “reasonable safeguards against congestion.” In adopting the rules, the FCC declared that it had jurisdiction to act under Title III of the 1934 Communications Act, as it cited Section 303(b) of the Act, which authorizes the agency to “prescribe the nature of the service to be rendered.” On appeal, however, Verizon argued that the “flat obligation” to offer data roaming constitutes an attempt by the FCC to impose common carrier regulation on non-common carriers. Appearing before the court, counsel for Verizon told the three-judge panel that the FCC was trying to introduce “a sweeping new theory of authority” which “could open up a pandora’s box in terms of allowing the Commission to regulate broadband.” Verizon further noted that the criteria the FCC will use to resolve disputes and to determine whether data roaming terms are commercially reasonable are identical to those used for voice roaming, which is treated as a common carrier service. Judge David Tatel, however, pointed to the FCC’s earlier pronouncement that voice roaming is a common carrier obligation “in the context” of common carriage and that roaming is not necessarily a common carrier service in every context. Tatel further stipulated that the rule requiring data roaming on “commercially reasonable” terms is “very different” from the “just and reasonable” terms that are required of common carriers. Judge Merrick Garland agreed, adding that the rule enabling parties to strike individualized data roaming agreements is “very different from the common carrier obligation” that forces such carriers to offer the same terms and conditions to all parties. Meanwhile, FCC Deputy General Counsel Peter Karanjia offered several examples in which Verizon could engage in differentiated treatment of carrier agreements under the data roaming rules. Asserting that Verizon could reject a data roaming request based on technical incompatibility or could charge one party higher rates for data roaming than another party, Karanjia told the court: “the requirement to hold out the same terms and conditions would be classic common carriage,” but “the order makes perfectly clear . . . that it is absolutely not.”