Yesterday a federal appeals court upheld the Federal Communications Commissions rule, adopted in April 2011, requiring wireless carriers who provide mobile data services to offer roaming agreements to other wireless providers on commercially reasonable terms. (For example, if a Cricket Wireless subscriber leaves that provider’s coverage area, he or she may still use data services of any carrier with whom Cricket has a data roaming arrangement.) In Cellco Partnertship v. FCC, the U.S. Court of Appeals for the D.C. Circuit found that “Title III of the Communications Act of 1934 plainly empowers the Commission to promulgate the data roaming rule.”
Although the FCC long ago adopted a limited roaming requirement for mobile voice services and has expanded voice-roaming rules in recent years, the Commission’s authority to issue similar requirements for mobile data services was at issue in this case. While mobile voice services are subject to certain common carriage requirements of Title II of the Communications Act, which regulates similar services, such as landline telephone services, the FCC’s authority to regulate mobile data services arises only from Title III of the Act. Mobile data services are considered “information services” and are, therefore, excluded from the definition of “common carrier” in the Act, as interpreted by the Commission.
Although public interest groups and smaller wireless services providers supported the Commission’s issuance of a rule requiring “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,” Verizon and AT&T argued against the adoption of the rule during the public notice and comment period of the rulemaking proceeding. After the rule was adopted, Verizon challenged it in the Court of Appeals on several grounds. The primary arguments advanced by Verizon were that: (1.) the data roaming rule treated mobile-internet providers as common carriers, in violation of the Act; and (2) the FCC lacked authority under Title III to promulgate the data roaming rule.
The Court disagreed with these arguments and upheld the Commission’s data roaming rule. In holding that the FCC did indeed have authority under Title III to issue the rule, the Court noted that “Title III affords the Commission ‘broad authority to manage spectrum . . . in the public interest.’” In particular, the Court noted provisions directing the Commission to “[p]rescribe the nature of service to be rendered by each class of licensed stations.” The Court also deferred to the FCC’s determination that “the rule imposes no common carrier obligations on mobile-Internet providers.”
Yesterday’s decision provided some hope for supporters of the FCC’s authority to adopt net neutrality rules, which also are under challenge before the D.C. Circuit. It bears emphasis, however, that the bulk of the net neutrality rules apply to wired broadband services, which are not governed by Title III of the Act. Oral arguments have yet to be scheduled in the net neutrality appeal.