T-Mobile got its way Thursday when a petition it filed resulted in the FCC issuing the “Data Roaming Order”, which clarifies language around rules that govern data roaming agreements.
The declaratory ruling, which was not voted on but was rather issued by the Wireless Telecommunications Bureau, will allow the Commission to determine reasonable terms and conditions for data roaming on a case by case basis. The FCC said that it had concluded that the ruling would strengthen competition, promote consumer access, and encourage new entrants to the market.
T-Mobile filed its petition back in May of 2014. In its filing, T-Mobile aruged that the data roaming marketplace was broken and that “must have” roaming partners were exploiting ambiguity in existing rules to deny roaming requests. T-Mobile proposed four “benchmarks” that it said would be relevant for assessing the commercial reasonableness of data roaming rates, including: retail rates; international roaming rates; MVNO/resale rates; and roaming rates charged by other providers.
“T-Mobile’s asserts that the Commission should consider whether aproffered data roaming rate “substantially exceeds” the first three of these benchmarks, and also “how [that rate] compares” to the fourth benchmark, as part of the totality of the circumstances approach in deciding whether a proffered data roaming rate is commercially reasonable,” the FCC wrote in a document explaining the ruling.
Competitive Carriers Association President & CEO Steven K. Berry praised the ruling, calling the Commission’s decision a win for smaller carriers.
“Providing additional clarification and guidance on the commercially reasonable standard will be enormously helpful for competitive carriers as they negotiate 3G and 4G roaming agreements,” Berry said. “While limited and narrow, the FCC’s action will benefit all carriers, including AT&T and Verizon, but especially rural and regional carriers whose roaming expenses tend to be significantly higher percentages than most.”
Berry said consumers will also benefit from the ruling, as it will “help incent deploying mobile broadband services in [rural] areas and provide the latest data services to their consumers.”
Commissioners Ajit Pai and Michael O’Rielly were not as pleased with how Chairman Wheeler conducted business. Pai and O’Reilly issued a statement that strongly objected to Chairman Wheeler’s foregoing of a vote on the matter.
“FCC decisions issed on the Bureau level cut the Commissioners out of the decision-making process entirely,” Pai and O’Reilly wrote. “This not how a democracy works. And it’s not how the FCC in particular ever worked.”
Wheeler saw things differently, arguing that the original 2011 Order, which was voted on by the Commission, gave the Wireless Telecommunications Bureau authority to resolve disputes with respect to the data roaming rule. Wheeler also said that time was of the essence in the matter.
“The action today was in accord with that previous decision,” Wheeler wrote. “I will continue to work with all my colleagues, but the work of the Commission cannot be inappropriately held up.”