On December 4, 2012, the United States Court of Appeals for the District of Columbia Circuit affirmed the Federal Communications Commission’s (“Commission” or “FCC”) April 7, 2011 Data Roaming Order which instituted the “data roaming rule.” See Cellco P’ship v. FCC, No. 11-1135, slip op. (D.C. Cir. Dec. 4, 2012); Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile-Data Services, 26 FCC Rcd. 5411, 5411, ¶ 1 (2011).
In Cellco Partnership v. FCC, Cellco Partnership, more commonly known as Verizon, challenged the data roaming rule—which “require[es] ‘providers of commercial mobile-data services to offer data roaming agreements to other such providers on commercially reasonable terms and conditions, subject to certain limitations”’—on three separate grounds. Cellco P’Ship at 8. Verizon argued that the Commission lacked statutory authority to issue the rule, that the rule, on its face, violates the statutory prohibition against treating mobile-internet providers as common carriers, and that the rule effects an unconstitutional taking and is arbitrary and capricious. Id. During oral argument, Verizon also pointed out that “the Commission might . . . apply [the data roaming rule] in a manner that will effectively ‘relegate’ mobile-data providers ‘to common-carrier status.’” Id. at 25.
Rejecting Verizon’s arguments, the D.C. Circuit held that “Title III of the Communications Act of 1934 plainly empowers the Commission to promulgate the data roaming rule. And although the rule bears some marks of common carriage, [the Court] defer[s] to the Commission’s determination that the rule imposes no common carrier obligations on mobile-internet providers.” Id. at 3. The Court was careful, however, to point out that Verizon only brought a facial challenge to the data roaming rule as opposed to an “as applied” challenge. As such, the Court noted that Verizon is not precluded from bringing an “as applied” challenge to the rule “should the Commission apply the data roaming rule so as to treat Verizon as a common carrier.” Id. at 25.
It remains to be seen whether or not Verizon will petition the United States Supreme Court for certiorari.