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Blanca Telephone Company Order on Reconsideration

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Released: June 25, 2014
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Federal Communications Commission

DA 14-865

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Reexamination of Roaming

)

WT Docket No. 05-265

Obligations of Commercial

)

Mobile Radio Service Providers and Other

)

Providers of Mobile Data Services

)

ORDER ON RECONSIDERATION

Adopted: June 25, 2014

Released: June 25, 2014

By the Chief, Wireless Telecommunications Bureau:

I.

INTRODUCTION

1.

In this Order on Reconsideration (Order), we address 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 negotiations1 in the Commission’s Data Roaming Order.2

We find that Blanca presents no material error or omission in the Commission’s Data Roaming Order or

any additional new facts warranting reconsideration. As explained 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. We therefore deny Blanca’s

Petition.3

II.

BACKGROUND

2.

Data Roaming Order. “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.4

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.5

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

1 Petition for Reconsideration of Blanca Telephone Company, WT Docket No. 05-265 (filed June 6, 2011)

(Petition).

2 Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of

Mobile Data Services, Second Report and Order, 26 FCC Rcd 5411 (2011) (Data Roaming Order), aff’d, Cellco

Partnership v. FCC, 700 F.3d 534 (D.C. Cir. 2012); see also 47 C.F.R. § 20.12(e).

3 As noted below, we resolve this petition pursuant to our delegated authority under Section 1.429(l) of the

Commission’s rules. See 47 C.F.R. § 1.429(l).

4 Data Roaming Order, 26 FCC Rcd 5411, para. 1.

5 Data Roaming Order, 26 FCC Rcd 5411, 5432-33, paras. 1, 42-43; see also 47 C.F.R. § 20.12(e).

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individualized basis.”6

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.”7

3.

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.”8

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.9

The Commission declined to adopt a mandatory, uniform time limit

based on its assessment that some data roaming negotiations may be “more complex or fact-intensive”

than others and require more time.10

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.11

4.

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.12

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.”13

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,14 and it established specific

6 Data Roaming Order, 26 FCC Rcd at 5432-33, paras. 43–45.

7 Id. at 5433, para. 45. The Commission also deemed it reasonable for a provider not to offer a data roaming

arrangement to a requesting provider that is not “technologically compatible,” or where it is not “technically feasible

to provide roaming for the particular data service for which roaming is requested and any changes to the host

provider’s network necessary to accommodate roaming” for that service “are not “economically reasonable.” Id. at

5432–33, para. 43. Likewise, the Commission determined that it is reasonable for a provider to “condition the

effectiveness of a data roaming arrangement on the requesting provider’s provision of mobile data service to its own

subscribers using a generation of wireless technology comparable to the technology on which the requesting

provider seeks to roam.” Id. at 5433, para. 43.

8 Id. at 5432, para. 42.

9 Id. at 5451–52, para. 84 (internal citations omitted). Several commenters had urged the Commission to adopt a

“shot clock” in order to address alleged practices of stonewalling and delay by the larger national carriers. See, e.g.,

Reply Comments of Cox Communications, WT Docket No. 05-265, at 6–8 (filed July 12, 2010).

10 Data Roaming Order, 26 FCC Rcd at 5452, para. 84.

11 Id.

12 Id. at 5452, paras. 84-85. The Commission also stated that it would address, on a case-by-case basis, disputes

about whether a particular data roaming offering includes commercially reasonable terms and conditions. Id. at

para. 85.

13 Id. at 5452, para. 86.

14 Id. at 5449, para. 75 (providing that a party to a data roaming dispute may file a petition for declaratory ruling

under Section 1.2 of the Commission’s rules or use certain of the complaint processes established in Part I, Subpart

E of the Commission’s rules); see also 47 C.F.R. § 1.2 (declaratory rulings); 47 C.F.R. § 20.12(e)(2) (incorporating

the formal and informal complaint procedures in Sections 1.716 through 1.718, 1.720, 1.721, and 1.723 through

1.735 of the Commission’s rules, 47 C.F.R. §§ 1.716 –1.718, 1.720, 1.721, and 1.723–1.735, excluding the remedy

of damages). The Commission indicated that whether the appropriate procedural vehicle for a dispute is a petition

for declaratory ruling under Rule 1.2 or a complaint under Rule 20.12(e)(2) may vary depending on the

circumstances specific to each dispute. Data Roaming Order, 26 FCC Rcd at 5449, para. 75.

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dispute resolution procedures to ensure the prompt resolution of any data roaming disputes brought before

it.15

5.

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.16

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.17

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.18

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.19

Second, Blanca maintains that the

Commission’s decision to impose time limits on a case-by-case basis will place an 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.20

6.

On November 21, 2011, the Commission released a Public Notice announcing the filing

of the Petition and seeking comment.21

The Public Notice was published in the Federal Register on

December 1, 2011.22

In response, the Commission received three comments and three replies.23

Other

than AT&T, all commenters, including several providers and associations, supported the petition.

15 For example, the Commission delegated authority to the appropriate Bureaus to resolve declaratory ruling

petitions and complaints arising out of the data roaming rule. Data Roaming Order, 26 FCC Rcd at 5451, para. 82.

The Commission also established that Commission staff, in its discretion, may require the parties to submit to the

Commission their “best and final offers,” and if a violation of the data roaming rule is found, to rely on the

submitted offers in determining an appropriate remedy. Id. at 5450, para. 79. Similarly, the Commission stated that

Commission staff, upon request in appropriate cases, may order a host provider to provide data roaming on its

proffered terms during the pendency of a data roaming dispute, subject to a possible true-up once a roaming

agreement is in place. Id. at 5450–51, para. 80. Finally, the Commission noted that its Accelerated Docket

procedures, including pre-complaint mediation, may be available to data roaming complainants in appropriate cases.

Id. at 5449–50, para. 77.

16 Petition at 5, 9 (internal citation omitted).

17 Id. at 8, 9.

18 Id. at 7 (citing Data Roaming Order, 26 FCC Rcd at 5452, para. 84).

19 Id. at 7.

20 Id. at 8.

21 Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of

Mobile Data Services, WT Docket No. 05-265, Public Notice, Report No. 2938 (2011).

22 76 Fed. Reg. 74721 (2011).

23 See Comments of MetroPCS Communications, Inc., NTELOS Holdings Corp., PR Wireless, Inc., Revol Wireless,

National Telecommunications Cooperative Association, Rural Cellular Association, Rural Telecommunications

Group, United States Cellular Corporation, WT Docket No. 05-265 (filed Dec. 16, 2011) (“MetroPCS et al.

Comments”); Comments of NTCH, Inc., WT Docket No. 05-265 (filed Dec. 16, 2011) (“NTCH Comments”);

Comments of AT&T Inc., WT Docket No. 05-265 (filed Dec. 16, 2011) (“AT&T Comments”); Reply Comments of

AT&T, WT Docket No. 05-265 (filed Dec. 27, 2011) (“AT&T Reply Comments”); Reply Comments of Blanca

Telephone Company, WT Docket No. 05-265 (filed Dec. 27, 2011) (“Blanca Reply Comments”); Reply Comments

(continued . . .)

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III.

DISCUSSION

7.

Pursuant to Section 1.429 of our rules, parties may petition for reconsideration of final

orders in a rulemaking proceeding.24

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.25

8.

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.”26

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.27

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, we are exercising our delegated

authority under Section 1.429(l) of the rules to address and deny Blanca’s petition.

9.

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.28

It hypothesizes that it may “tur[n] out to be the

case” that there are relatively few complex negotiations requiring additional time.29

We find that this kind

of speculation about the nature of future data roaming negotiations under the Commission’s new rules

(. . . continued from previous page)

of Blooston Rural Carriers, WT Docket No. 05-265 (filed Dec. 27, 2011) (“Blooston Reply Comments”); see also

Ex Parte Letter of MetroPCS Communications, Inc., National Telecommunications Cooperative Association,

NTELOS Holdings Corp., Rural Cellular Association, United States Cellular Corporation, and Telecommunications

Law Professionals PLLC, WT Docket No. 05-265 (filed Dec. 16, 2011) (“MetroPCS et al. Ex Parte”). We note

that, since the filing of this record, MetroPCS merged with T-Mobile. See Applications of Deutsche Telekom AG,

T-Mobile USA, Inc., and MetroPCS Communications, Inc., WT Docket No. 12-301, Memorandum Opinion and

Order and Declaratory Ruling, 28 FCC Rcd 2322 (WTB, IB 2013). For convenience, we will continue to refer to

the commenter as MetroPCS for purposes of this Order.

24 47 C.F.R. § 1.429.

25 Petition for Reconsideration by Acadiana Cellular General Partnership, WT Docket No. 04-323, Order on

Reconsideration, 20 FCC Rcd 8660, 8663, para. 8 (2006).

26 Amendment of Certain of the Commission’s Part 1 Rules of Practice and Procedure and Part 0 Rules of

Commission Organization, Report and Order, 26 FCC Rcd 1594, 1606, paras. 27-28 (2011) (Revision of Recon

Rules Order); see also 47 C.F.R. §§ 1.429(l) (codifying delegation in rulemaking cases) and 1.106(p) (codifying

same delegation in non-rulemaking cases).

27 The examples above are drawn from the rules’ illustrative list of petitions for reconsideration that would “plainly .

. . not warrant consideration” and thus fall within the staff’s delegated authority. See 47 C.F.R. §§ 1.429(l)(1), (3).

In adopting the rules, the Commission emphasized that this list is not intended to be exhaustive, as “it is difficult to

foresee every circumstance in which staff appropriately should be allowed to exercise this authority,” and such a

limitation would thus “depriv[e] staff of the necessary flexibility to handle particular petitions.” Revision of Recon

Rules Order, 26 FCC Rcd at 1607, para. 29.

28 Petition at 7 (citing Data Roaming Order, 26 FCC Rcd at 5452, para. 84).

29 Id.

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does not present a material error, omission or reason warranting reconsideration.30

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.31

Blanca’s argument therefore does not support

reconsideration of the Commission’s approach.32

10.

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.33

They contend that the Commission’s approach exacerbates this problem and that only a

“shot clock” will adequately address incentives to delay.34

We disagree. 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.”35

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.36

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

30 See 47 C.F.R. § 1.429(l)(1).

31 Indeed, even the proponents of a “shot clock” in this proceeding appear to recognize that the ongoing transition

from 3G to 4G data roaming agreements raises potentially complex issues for negotiation. See MetroPCS et al.

Comments at 6 n.14. As noted by AT&T, MetroPCS et al.’s comments detail several complex issues that must be

addressed in the course of data roaming negotiations, including “various classes of service, traffic prioritization,

network testing, and future traffic projections.” AT&T Reply at 2–3 (citing MetroPCS et al. Comments at 7–8).

32 See, e.g., Data Roaming Order, 26 FCC Rcd at 5433, para. 45; see also id. at 5450, para. 78 (rule provides

“greater flexibility and variation in terms and conditions”); CellCo Partnership v. FCC, 700 F.3d 534, 548 (D.C.

Cir. 2012) (upholding the data roaming rule in part because it “leaves substantial room for individualized

bargaining”).

33 See, e.g., Petition at 8; MetroPCS et al. Comments at 6-7; NTCH Comments at 1-2; Blooston Reply Comments at

3-4.

34 See, e.g., Blanca Reply Comments at 4; MetroPCS et al. Comments at 8. Some commenters point to

Congressional- and Commission- imposed deadlines and “shot clock” requirements in “tower siting,” pole

attachment, and other contexts in advocating the adoption of a “shot clock” here. See, e.g., MetroPCS et al.

Comments at 10–13; Blooston Reply Comments at 4 (citing MetroPCS et al. Comments at 10–13). We do not find

these other contexts, involving very different regulatory schemes and issues, persuasive as guides to what approach

the Commission should adopt for data roaming negotiations. A more analogous context is the Commission’s earlier

voice roaming proceeding, in which the Commission, in adopting rules governing voice roaming obligations,

rejected requests for a negotiation “shot clock” and instead adopted a “case-by-case” approach to addressing claims

of unreasonable behavior in roaming negotiations, including claims of undue delay. See Reexamination of Roaming

Obligations of Commercial Mobile Radio Service Providers, WT Docket No. 05-265, Report and Order and Further

Notice of Proposed Rulemaking, 22 FCC Rcd 15817, 15829–31, paras. 30–35 (2007); see also Order on

Reconsideration and Second Further Notice of Proposed Rulemaking, 25 FCC Rcd 4181, 4199–01, paras. 37–40

(2010).

35 Data Roaming Order, 26 FCC Rcd at 5426, para. 27.

36 Data Roaming Order, 26 FCC Rcd at 5432, para. 42.

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Commission at any time and ask the Commission to set a deadline for one or both parties to act.37

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.”38

11.

Accordingly, Blanca’s argument based on disparate bargaining power has already been

fully considered and rejected by the Commission.39

It also identifies no material error, omission, or

reason warranting reconsideration.40

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.

12.

In conclusion, we find 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.41

Accordingly, the Petition is denied. We

remind 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.42

IV.

ORDERING CLAUSES

13.

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 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

C.F.R. § 1.429, that this Order on Reconsideration IS ADOPTED, effective on publication of the text or

summary thereof in the Federal Register.

37 Id. at 5451-52, para. 84. As noted above, the Commission has delegated authority to the appropriate Bureaus to

resolve such disputes.

38 Id. at 5451, para. 80. We emphasize that the Commission’s recognition that roaming negotiations may be

complex or fact intensive should not lead host providers to rely on such recognition to engage in unreasonably delay

before making an offer.

39 See 47 C.F.R. § 1.429(l)(3).

40 See id. § 1.429(l)(1).

41 Data Roaming Order, 26 FCC Rcd at 5451-52, paras. 80, 84. In its comments, NTCH asks the Commission to set

a “presumptive cap” on the rates that host providers may charge for data roaming. NTCH Comments at 2. Because

this proposal is outside the scope of the instant Petition, we decline to consider it.

42 See Data Roaming Order, 26 FCC Rcd at 5438, para. 56.

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14.

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 C.F.R. § 1.429, that the Petition for Reconsideration filed by Blanca Telephone Company on

June 6, 2011, IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Roger C. Sherman

Chief

Wireless Telecommunications Bureau

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