T-Mobile US (NYSE:TMUS) said recent filings by AT&T Mobility (NYSE: T) and Verizon Wireless (NYSE: VZ) that seek to reverse a December FCC ruling on data roaming are "nothing more than untimely renewed attempts" to tilt roaming regulations that favor AT&T and Verizon. The FCC's ruling late last year provided clarification and guidance over what constitutes a "commercially reasonable" data roaming agreement, and was largely a win for T-Mobile and smaller carriers.
"AT&T and Verizon do not even address--let alone contest--the underlying premise of T- Mobile's request: that the roaming marketplace is broken and that additional guidance was needed," T-Mobile wrote in a filing with the FCC this week seeking to dismiss Verizon and AT&T's petitions to reconsider the December ruling.
In filings in January, AT&T and Verizon said that the FCC's Wireless Telecommunications Bureau ran counter to the FCC's own policies and violated the Administrative Procedure Act as well as constitutional protections for due process when it sided with T-Mobile.
T-Mobile wrote that the bureau "merely provided guidance to support what the Commission had already done in the [initial 2011] Data Roaming Order--something that it is clearly permitted to do under the APA. As a result, AT&T's and Verizon's filings are nothing more than untimely objections to the Data Roaming Order itself, and not to the Declaratory Ruling [from late last year], which imposes no new obligations on them whatsoever."
"AT&T and Verizon also strangely suggest that the Commission has an over-arching policy that roaming is to be discouraged through the imposition of inflated roaming rates that they believe are needed to encourage build-out," T-Mobile wrote. "But AT&T and Verizon ignore the fact that their regulatory obligation to provide data roaming on commercially reasonable terms is unaffected by requesting carriers' build-out status. And a requesting carrier's build-out status is only one factor among many for judging the commercial reasonableness of a proffered roaming arrangement."
T-Mobile said Verizon and AT&T argue that the December ruling "creates new obligations that are somehow vague or ambiguous for purposes of negotiating commercially reasonable agreements." However, T-Mobile said that a federal appeals court affirmed that the FCC could use a "case-by-case, totality-of-the- circumstances approach" when the court affirmed the FCC's original 2011 data roaming order, and that the December ruling takes the same approach.
The December ruling effectively provides guidance to carriers about how the FCC will evaluate potential complaints about data roaming agreements in the future.
Under the new guidelines, if there is a dispute over a data roaming agreement between two carriers, the unhappy party could bring a complaint to the FCC. The FCC could then take into consideration the additional factors related to roaming rates that T-Mobile had sought to determine if the deal is commercially reasonable. However, the FCC could decide not to consider those factors.
Specifically, T-Mobile proposed four "benchmarks" that it said the FCC should consider in assessing the commercial reasonableness of data roaming deals: retail rates, international roaming rates, MVNO/resale rates, and roaming rates charged by other providers. The FCC agreed with T-Mobile's approach.
"In our view, the data roaming rule was intended to permit consideration of the totality of the facts and therefore to permit a complaining party to adduce evidence in any individual case as to whether proffered roaming rates are substantially in excess of retail rates, international rates, and MVNO/resale rates, as well as a comparison of proffered roaming rates to domestic roaming rates as charged by other providers," the FCC's ruling states.
AT&T and Verizon argued that the FCC should have initiated a new rulemaking to address T-Mobile's concerns.
- see this T-Mobile filing
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