FCC requires reasonable home roaming for voice services, invites comment on mandatory automatic roaming for data services

In an Order/Further Notice of Proposed Rulemaking adopted at its April 21 meeting, the FCC slightly modified its current rules on the obligation to provide automatic roaming to other CMRS carriers, while temporizing on the question of whether to extend automatic roaming privileges to data services.

The modest change concerns the elimination of “home roaming” as an exclusion from the usual automatic roaming rule applicable to voice, SMS and push-to-talk services. In 2007 when the FCC originally declared that the enabling of automatic roaming was a common carrier obligation, it carved out an exception for home roaming.  Home roaming, of course, refers to the situation where a carrier’s customers roam on another carrier’s network while they are in their home carrier’s licensed service area – not at all the circumstance that roaming is usually thought to apply.

The exclusion of home roaming from the roaming mandate made a certain sense. If carriers could simply have their own customers roam on their competitors’ networks in markets where they themselves had licenses, there would be no incentive for them to build out the portions of the market that would be difficult or expensive to reach or serve. They could simply piggy-back on their competitor by having their subscribers roam in the remote parts of their service areas where the competitor had spent the time, money and effort to erect facilities. This seemed to run counter to the Commission’s policy of fostering facilities-based competition wherever possible.

Nevertheless, a gaggle of Tier II and Tier III carriers sought reversal of this decision, vigorously opposed by AT&T and Verizon. It seemed that the smaller carriers were licensed in many territories where it was infeasible to serve all or part of the territory, at least for the immediate future.  In the meantime, the home roaming exclusion gave AT&T and Verizon the right to forbid roaming altogether in those markets, putting the junior carriers at a significant competitive disadvantage.

It was a close case, with merit to both sides, but the FCC came down on the side of the smaller operators: it mandated home roaming upon request. The Commission eased the sting somewhat for AT&T and Verizon by permitting a carrier presented with a roaming request to rebut the presumption that such a request is reasonable.

With the announcement of the new National Broadband Plan last month, the table appeared set for the Commission to also act on the long-pending question of whether carriers should be required to offer automatic roaming for data, in addition to voice, services. The FCC had punted on this issue in 2007 by the time-honored dodge of seeking more information. Having sat on the facts it developed three years ago, it may now honestly claim that that record is stale and it must therefore delay action again by seeking new facts.

(Blogger’s observation: This is one of the tearing-one’s-hair-out aspects of administrative law. An agency can procrastinate on an issue for years, and then, when it takes the matter up again, claim with a straight face that it now needs to gather more information because of the passage of time. Procrastination actually becomes a legal justification for more procrastination.)

In any case, the FCC is seeking further input on this issue, which has taken center stage now that broadband has become the golden idol which the FCC worships. Clearly, if mobile broadband is to become a reality, there will have to be some understanding about the availability of roaming to broadband subscribers who travel to non-home markets. Among the issues the FCC has teed up is the question of whether a non-home carrier can discriminate between its own subscribers and roamers by, e.g., placing limits on roaming access to its network that do not apply to its own subscribers.   Because bandwidth may be in short supply and some data applications are bandwidth-hungry, it might well make sense for carriers to favor their own subscribers over mere roamers – a situation which rarely arises in the pure voice context.

Also of interest is the question of whether automatic roaming should be required where one or both of the providers involved are not actual CMRS providers, i.e., are not common carriers.   The assumption underlying the original automatic roaming proposal was that the participants in the roaming process would themselves be CMRS carriers.   But since wireless internet service is (at least for the moment) classified as an information service rather than a telecommunications service, there are many wireless data providers in the broadband landscape who would not be covered one way or another by a rule on automatic data roaming.   If automatic roaming for data providers is to be meaningful, the FCC’s inquiry needs to encompass those types of providers, too.

Comments on this aspect of the roaming proceeding are due 45 days after the item appears in the Federal Register, with Reply Comments due 30 days later.     Check back for updates on those deadlines.