[Federal Register Volume 79, Number 145 (Tuesday, July 29, 2014)]
[Rules and Regulations]
[Pages 43956-43958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17704]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 20

[WT Docket No. 05-265; DA 14-865]


Reexamination of Roaming Obligations of Commercial Mobile Radio 
Service Providers and Other Providers of Mobile Data Services

AGENCY: Federal Communications Commission.

ACTION: Petition for reconsideration; denial.

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SUMMARY: In this document, the Wireless Telecommunications Bureau 
(Bureau) addresses a petition filed by Blanca Telephone Company 
(Blanca), seeking reconsideration of the Commission's decision to 
reject a uniform time limit or ``shot clock'' on all data roaming 
negotiations. The Bureau finds that Blanca presents no material error 
or omission in the Commission's Data Roaming Order, or any additional 
new facts warranting reconsideration. In the Data Roaming Order, the 
Commission's decision to reject a single time limit for all 
negotiations but to consider requests for time limits on a case-by-case 
basis provides appropriate flexibility in negotiations that will 
involve a wide range of evolving technologies and commercial contexts, 
while allowing parties to seek Commission intervention if a negotiating 
partner unduly delays a particular negotiation.

DATES: Effective July 29, 2014.

FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg, Spectrum and 
Competition Policy Division, Wireless Telecommunications Bureau, (202) 
418-7369, email [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Wireless 
Telecommunications Bureau's Order on Reconsideration, WT Docket No. 05-
265, DA 14-865, adopted June 25, 2014, and released June 25, 2014. The 
full text of this document is available for inspection and copying 
during business hours in the FCC Reference Information Center, Portals 
II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Also, it 
may be purchased from the Commission's duplicating contractor at 
Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; 
the contractor's Web site, http://www.bcpiweb.com; or by calling (800) 
378-3160, facsimile (202) 488-5563, or email [email protected]. Copies of 
the Order on Reconsideration also may be obtained via the Commission's 
Electronic Comment Filing System (ECFS) by entering the docket number 
WT Docket No. 05-265. Additionally, the complete item is available on 
the Federal Communications Commission's Web site at http://www.fcc.gov.
    1. Data Roaming Order, 76 FR 26199, May 6, 2011. Data roaming 
allows consumers to obtain data services over their mobile devices when 
they travel outside their own provider's network coverage areas, by 
relying on another provider's network. In the Data Roaming Order, the 
Commission sought to promote consumer access to nationwide mobile 
broadband service by adopting a rule requiring facilities-based 
providers of commercial mobile data services to offer roaming 
arrangements to other such providers on commercially reasonable terms 
and conditions, subject to certain limitations. To ensure that the data 
roaming rule is sufficiently flexible to apply to a wide range of 
evolving technologies and commercial contexts, the Commission allowed 
providers ``[to] negotiate the terms of their roaming arrangements on 
an individualized basis.'' As the Commission explained, this means that 
providers may tailor roaming agreements to ``individualized 
circumstances without having to hold themselves out to serve all comers 
indiscriminately on the same or standardized terms.''
    2. The Commission made clear that, once a provider requests a data 
roaming arrangement, a would-be host provider ``has a duty to respond 
promptly to the request and avoid actions that unduly delay or 
stonewall the course of negotiations regarding that request.'' The 
Commission also addressed commenter proposals designed to limit delay 
tactics in data roaming negotiations, including proposals to establish 
a mandatory, uniform time limit, described as a ``shot clock,'' for all 
negotiations subject to the Commission's data roaming rule. The 
Commission declined to adopt a mandatory, uniform time limit based on 
the Commission's assessment that some data roaming negotiations may be 
``more complex or fact-intensive'' than others and require more time. 
Instead, the Commission determined that if a provider believes that 
another provider is unduly delaying a data roaming negotiation, it may 
ask the Commission to set a time limit for that particular negotiation.
    3. The Commission provided that it would address all such 
individual requests for a time limit, and any other disputes over a 
provider's conduct during data roaming negotiations, on a case-by-case 
basis, taking into consideration the totality of the circumstances. 
Among the factors that the Commission stated it may consider in 
determining the commercial reasonableness of a host provider's conduct 
during negotiations are whether the provider ``has responded to the 
request for negotiation,'' whether it has engaged in ``a persistent 
pattern of stonewalling behavior,'' and ``the length of time since the 
initial request.'' The Commission held that a party to a data roaming 
dispute may seek relief through either a petition for declaratory 
ruling or a formal or informal complaint, and it established specific 
dispute resolution procedures to ensure the prompt resolution of any 
data roaming disputes brought before it.
    4. Blanca Telephone Company Petition for Reconsideration. On June 
6, 2011, Blanca filed the instant Petition, which requests that the 
Commission ``reconsider and reverse its decision declining to adopt a 
time limit for roaming negotiations'' that are subject to the 
Commission's data roaming requirements. Blanca explains that the 
proposed time limit or ``shot clock'' would allow ``either party to a 
negotiation, after a reasonable period such as 60 days,'' to refer the 
matter to the Commission for resolution pursuant to the dispute 
resolution processes established in the Data Roaming Order. Blanca 
contends that the Commission's decision to address claims of undue 
delay on a case-by-case basis, rather than establishing a uniform time 
limit for all data roaming negotiations, is flawed in two respects. 
First, it argues that the Commission's stated rationale for this 
decision--i.e., that some negotiations may be more complex or fact-
intensive than others and thus require more time--failed to quantify 
the actual number of negotiations that are likely to involve complex 
issues. According to Blanca, ``[i]f it turns out to be the case that 
relatively few negotiations fall into the `complex' category,'' then 
the Commission's determination ``will have imposed an unwarranted 
disadvantage on smaller rural and regional'' providers seeking data 
roaming arrangements with nationwide providers. Second, Blanca 
maintains that the Commission's decision to impose time limits on a 
case-by-case basis will place an

[[Page 43957]]

additional burden on smaller carriers that lack bargaining power by 
requiring them to demonstrate the need for a time limit in the course 
of their negotiations with larger national providers.
    5. On November 21, 2011, the Commission released a Public Notice, 
76 FR. 74721, December 1, 2011, announcing the filing of the Petition 
and seeking comment. In response, the Commission received three 
comments and three replies. Other than AT&T, all commenters, including 
several providers and associations, supported the petition.
    6. Pursuant to section 1.429 of the Commission's rules, parties may 
petition for reconsideration of final orders in a rulemaking 
proceeding. Reconsideration is generally appropriate only where the 
petitioner shows either a material error or omission in the original 
order or raises additional facts not known or not existing until after 
the petitioner's last opportunity to respond.
    7. In 2011, in order ``to allow the agency to resolve certain 
petitions for reconsideration more efficiently and expeditiously,'' the 
Commission amended its rules to delegate authority to the relevant 
bureau or office to dismiss or deny petitions filed in either 
rulemaking or non-rulemaking proceedings, if the petition ``plainly 
does not warrant consideration by the full Commission.'' Among the 
kinds of petitions that the Commission found would satisfy this 
standard are those that fail to identify any material error, omission, 
or reason warranting reconsideration, or that rely on arguments that 
have been fully considered and rejected by the Commission within the 
same proceeding. In this case, as discussed below, Blanca's first 
argument about the likely frequency of complex data roaming 
negotiations that may require more time than permitted under a ``shot 
clock'' is a wholly speculative one that fails to identify any material 
error, omission, or reason warranting reconsideration. Blanca's second 
argument, based on the incentives of the largest mobile broadband 
providers, was specifically considered and rejected in the Data Roaming 
Order, and in any event also fails to identify any material error, 
omission, or reason warranting reconsideration. Given these 
circumstances, the Bureau exercises its delegated authority under 
section 1.429(l) of the rules to address and deny Blanca's petition.
    8. As noted above, Blanca first challenges the rationale for the 
Commission's decision to reject a ``shot clock'' in favor of a case-by-
case approach for addressing allegations of undue carrier delay of 
negotiations, which the Commission preferred because some negotiations 
may be more complex or fact-intensive than others. Blanca argues that 
the Commission failed to quantify the actual number of negotiations 
that are likely to involve complex issues. It hypothesizes that it may 
``tur[n] out to be the case'' that there are relatively few complex 
negotiations requiring additional time. The Bureau finds that this kind 
of speculation about the nature of future data roaming negotiations 
under the Commission's new rules does not present a material error, 
omission or reason warranting reconsideration. As these rules and 
procedures regarding negotiations over data roaming arrangements were 
newly created in this proceeding, there is little track record upon 
which to calculate the likely number of complex negotiations that may 
occur, and Blanca has provided nothing concrete upon which to base such 
a projection. Moreover, the very nature of the evolving mobile 
broadband industry, the variable nature of the network configurations, 
services, technologies, and business plans involved, and the 
individualized nature of data roaming agreements make it unrealistic to 
predict the relative number of data roaming negotiations that may raise 
complex or fact-intensive issues at any given time. Further, this 
uncertainty itself counsels against establishing a uniform deadline in 
all cases, particularly given the ability of providers under the rule 
to negotiate individualized data roaming agreements. Blanca's argument 
therefore does not support reconsideration of the Commission's 
approach.
    9. Blanca and other commenters supporting the petition also argue 
the Commission failed to consider the larger providers' greater 
bargaining power and lack of incentives to enter into roaming 
agreements. They contend that the Commission's approach exacerbates 
this problem and that only a ``shot clock'' will adequately address 
incentives to delay. The Bureau disagrees. The Commission carefully 
considered the impact of incentives on parties' negotiating conduct. In 
deciding to adopt its data roaming rule, the Commission highlighted the 
concern that ``consolidation may have . . . reduced the incentives of 
the largest two providers to enter into [data roaming] arrangements by 
reducing their need for reciprocal roaming.'' Further, it adopted 
specific measures to address the possibility that providers might 
engage in unreasonable delay. In particular, the Commission imposed on 
providers a duty to respond promptly to requests for data roaming and 
avoid actions that unduly delay negotiations regarding that request, 
and it provided an enforceable remedy. It further provided that if a 
requesting provider believes that the other party is violating its duty 
by unduly delaying the negotiation, the provider may bring such claim 
to the Commission at any time and ask the Commission to set a deadline 
for one or both parties to act. The Commission also emphasized that 
``in the event a would-be host provider violates its duty by actions 
that unduly delay or stonewall the course of negotiations, [the 
Commission] stands ready to move expeditiously with fines, forfeitures, 
and other appropriate remedies, which should reduce any incentives to 
delay data roaming negotiations.''
    10. Accordingly, Blanca's argument based on disparate bargaining 
power has already been fully considered and rejected by the Commission. 
It also identifies no material error, omission, or reason warranting 
reconsideration. While Blanca and other commenters allege that roaming 
negotiations can take inordinate periods of time, they fail to 
demonstrate that the processes established in the Data Roaming Order 
rules are inadequate to address problems of unreasonable delay. They 
offer no reason why providers cannot avail themselves of the 
established remedies, including the ability to ask the Commission to 
set a deadline for a particular negotiation, or evidence that providers 
have utilized current procedures and found them ineffective.
    11. In conclusion, the Commission finds nothing in the arguments or 
the record justifying reconsideration of the Commission's approach, 
which was designed to ensure that the data roaming rule remains 
sufficiently flexible to apply to a wide range of evolving technologies 
and commercial contexts, while allowing individual providers to seek 
expedited intervention by the Commission when a provider is unduly 
delaying the course of a data roaming negotiation. Accordingly, the 
Petition is denied. The Bureau reminds parties, however, that the 
Commission ``intend[s] to closely monitor further development of the 
commercial mobile broadband data marketplace and stand[s] ready to take 
additional action if necessary to help ensure'' that the goals of the 
data roaming proceeding are achieved.
    12. Accordingly, it is ordered, pursuant to the authority contained 
in Sections 1, 2, 4(i), 4(j), 301, 303, 304, 309, 316, 332, and 405 of 
the Communications Act of 1934, as amended, and Section 706 of the

[[Page 43958]]

Telecommunications Act of 1996, 47 U.S.C. 151, 152, 154, 301, 303, 304, 
309, 316, 332, 405, and 1302, and the delegated authority under Section 
1.429 of the Commission's rules, 47 CFR 1.429, that this Order on 
Reconsideration is adopted, effective on publication of the text or 
summary thereof in the Federal Register.
    13. It Is Further Ordered, pursuant to the authority contained in 
Section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 
405, and Section 1.429 of the Commission's rules, 47 CFR 1.429, that 
the Petition for Reconsideration filed by Blanca Telephone Company on 
June 6, 2011, is denied.

Federal Communications Commission.
Roger Sherman,
Chief, Wireless Telecommunications Bureau.
[FR Doc. 2014-17704 Filed 7-28-14; 8:45 am]
BILLING CODE 6712-01-P