The goal of the order is to give wireless customers access to data networks even if their own carrier doesn’t have data coverage in the area. The move will benefit smaller carriers that will be able to offer their customers nationwide data coverage by piggybacking on big carriers’ data networks in exchange for paying roaming fees. If carriers find that their competitors are not offering roaming agreements at “reasonable” rates, they will be able to appeal to the FCC for relief.
FCC Chairman Julius Genachowski said that it was a necessary action because wireless carriers had so far been unwilling to enter into roaming agreements with competitors.
“Evidence supplied by carriers in the market shows that roaming deals simply are not being widely offered on commercially reasonable terms,” he said. “On the contrary, the record makes clear that some providers have refused to negotiate 3G or 4G data roaming agreements, have created long delays, or have taken other steps to impede competition.”
The order was passed on a 3-2 party-line vote, with the FCC’s three Democrats in favor and two Republicans in opposition. Republican commissioners Meredith Baker and Robert McDowell said that while they supported the goal of having more carriers enter into wireless data roaming agreements, they also thought that the commission lacked the authority to enforce such an order.
Specifically, the commissioners said that common carrier rules did not apply to wireless data providers because the FCC currently classifies them as a Title I information services that are not subject to FCC regulations over issues such as rate setting and universal service obligations. This is in contrast to wireline and wireless telephone services, which are classified as Title II telecommunications services that are subject to common carrier rules. Both commissioners have made similar arguments in their opposition to the recently passed network neutrality regulations for wireline broadband carriers.
“I understand the importance of data roaming,” Baker said. “But I cannot support this order for a fundamental reason: In imposing these data roaming obligations on mobile broadband services, we exceed our authority and impose rules of common carriage that are impermissible under our statute.”
Wireless carriers Verizon and MetroPCS have challenged the FCC’s legal authority to impose common carrier restrictions on data networks. Those lawsuits came in response to the FCC passing net neutrality rules late last year that were similar to the joint proposal that Google and Verizon unveiled last summer that imposed net neutrality on wireline broadband while leaving wireless broadband mostly alone. So while the FCC’s order mandates that wireline broadband providers are not allowed to “block lawful content, applications, services or non-harmful devices, subject to reasonable network management,” wireless providers are only barred from blocking content or applications that directly compete with their own voice or video telephony services.