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Cellco v. FCC & USA, No. 11-1135, et al. (D.C. Cir.)

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Released: March 8, 2012
ORAL ARGUMENT NOT YET SCHEDULED
USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 1 of 135
BRIEF FOR RESPONDENTS
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NOS. 11-1135 & 11-1136
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS,
APPELLANT/PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
APPELLEE/RESPONDENTS.
ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
SHARIS A. POZEN
AUSTIN C. SCHLICK
ACTING ASSISTANT ATTORNEY GENERAL
GENERAL COUNSEL
CATHERINE G. O’SULLIVAN
PETER KARANJIA
FINNUALA K. TESSIER
DEPUTY GENERAL COUNSEL
ATTORNEYS
RICHARD K. WELCH
UNITED STATES
DEPUTY ASSOCIATE GENERAL COUNSEL
DEPARTMENT OF JUSTICE
WASHINGTON, D.C. 20530
LAURENCE N. BOURNE
COUNSEL
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 2 of 135

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

1. Parties.
All parties, intervenors, and amici appearing in this Court and before
the Commission are listed in the petitioner’s brief.
2. Ruling under review.
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) (“Order”) (J.A. 1), 76 Fed. Reg.
26199 (May 6, 2011).
3. Related cases.
This case has not previously been before this Court. We are not aware
of any related case pending before this Court or any other Court.

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 3 of 135

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................. i
TABLE OF AUTHORITIES .......................................................................... iii
GLOSSARY .................................................................................................... ix
JURISDICTION................................................................................................1
STATEMENT OF ISSUES...............................................................................2
STATUTES AND REGULATIONS ................................................................3
COUNTERSTATEMENT OF THE CASE ......................................................3
COUNTERSTATEMENT OF THE FACTS....................................................5
I.
STATUTORY AND REGULATORY BACKGROUND.........................5
II. THE ORDER ON REVIEW ....................................................................10
SUMMARY OF ARGUMENT ......................................................................21
ARGUMENT ..................................................................................................25
I.
DEFERENTIAL STANDARDS OF REVIEW APPLY IN
THIS CASE..............................................................................................26
II. THE DATA ROAMING RULE IS WITHIN THE FCC’S
STATUTORY AUTHORITY..................................................................28
A.
The FCC Correctly Determined That The Data Roaming
Rule Is Within Its Authority Under The Communications
Act. ......................................................................................................28
1.
The Data Roaming Requirement Does Not Impose A
Common-Carriage Obligation On Host Providers..........................29
2.
Specific Grants of Authority In The Communications
Act Expressly Authorize The FCC To Manage
Spectrum And To Impose Conditions On Licenses To
Further The Public Interest, Convenience, And
Necessity. ........................................................................................46
i

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 4 of 135
B.
Section 706 Of The Telecommunications Act Of 1996
Independently Authorizes The Data Roaming Rule. ..........................53
C.
Verizon’s Fifth Amendment Argument Is Meritless, And
Provides No Basis For Displacing Chevron Deference In
This Case. ............................................................................................56
III. THE DATA ROAMING RULE IS THE PRODUCT OF
REASONED AGENCY DECISIONMAKING ......................................60
CONCLUSION ...............................................................................................63
ii

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 5 of 135

TABLE OF AUTHORITIES

CASES

American Library Ass’n v. FCC, 406 F.3d 689
(D.C. Cir. 2005).................................................................................... 27, 52
American Trucking Ass’n v. FCC, 377 F.2d 121
(D.C. Cir. 1966)...........................................................................................43
AT&T v. FCC, 572 F.2d 17 (2d Cir. 1978) .....................................................31
Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441 (D.C. Cir.
1994)............................................................................................... 24, 56, 59
*
Bldg. Owners and Managers Ass’n Int’l v. FCC,
254 F.3d 89 (D.C. Cir. 2001) ............................................. 24, 56, 57, 59, 60
Cablevision Sys. Corp. v. FCC, 570 F.3d 83 (2d Cir.
2009)..................................................................................................... 24, 57
Cablevision Sys. Corp. v. FCC, 649 F.3d 695 (D.C.
Cir. 2011).....................................................................................................46
California Citizens Band Ass’n v. U.S., 375 F.2d 43
(9th Cir. 1967) .............................................................................................49
Cellnet Commc’ns v. FCC, 149 F.3d 429 (6th Cir.
1998)............................................................................................................52
Celtronix Telemetry, Inc. v. FCC, 272 F.3d 585
(D.C. Cir. 2001)...................................................................................... 2, 49
Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984) ........................... 21, 26, 27
Cmty. Television, Inc. v. FCC, 216 F.3d 1133 (D.C.
Cir. 2000).....................................................................................................49
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir.
2010)............................................................................................................55
*
Competitive Telecomms. Ass’n v. FCC, 998 F.2d
1058 (D.C. Cir. 1993)............................................................................. 7, 41
CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.
Supp. 1015 (S.D. Ohio 1997) ......................................................................58
Consumer Electronics Ass’n v. FCC, 347 F.3d 291
(D.C. Cir. 2003)...........................................................................................28
FCC v. Midwest Video Corp., 440 U.S. 689 (1979) ........ 29, 30, 33, 34, 35, 36
iii

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 6 of 135
FCC v. Pottsville Broad. Co., 309 U.S. 134 (1940)........................................29
FCC v. Sanders Bros. Radio Station, 309 U.S. 470
(1940) ..........................................................................................................50
FCC v. WNCN Listeners Guild, 450 U.S. 582
(1981) ....................................................................................... 27, 28, 29, 62
Iowa Telecomms. Servs. v. Iowa Utils. Bd., 563 F.3d
743 (8th Cir. 2009) ......................................................................... 36, 37, 38
Lichoulas v. FERC, 606 F.3d 769 (D.C. Cir. 2010)........................................45
*
Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC,
525 F.2d 630 (D.C. Cir. 1976) ............................................. 7, 30, 31, 32, 33
*
Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC,
533 F.2d 601 (D.C. Cir. 1976) ........................................... 29, 30, 32, 34, 38
*
Nat’l Broad. Co. v. United States, 319 U.S. 190
(1943) ............................................................................................. 22, 47, 48
Nat’l R.R. Passenger Corp. v. Boston & Maine
Corp., 503 U.S. 407 (1992) .........................................................................26
Orloff v. FCC, 352 F.3d 415 (D.C. Cir. 2003)................................. 6, 7, 36, 37
Penn Central Transp. v. New York City, 438 U.S.
104 (1978) ...................................................................................................57
Qwest Corp. v. United States, 48 Fed. Cl. 672
(2001) ..........................................................................................................58
Regents of University System of Georgia v. Carroll,
338 U.S. 586 (1950) ....................................................................................50
Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1043 (7th
Cir. 1992).............................................................................................. 22, 29
Sprint Corp. v. FCC, 331 F.3d 952 (D.C. Cir. 2003)......................................46
Sw. Bell Tel. Co. v. FCC, 19 F.3d 1475 (D.C. Cir.
1994)................................................................................... 29, 30, 32, 33, 34
Transmission Agency of N. California v. FERC, 495
F.3d 663 (D.C. Cir. 2007) .................................................................... 21, 27
Turner Broad. Sys., Inc. v. FCC, 819 F. Supp. 32
(D.D.C. 1993), vacated on other grounds, 512
U.S. 622 (1994) ...........................................................................................58
iv

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 7 of 135
U.S. Telecom Ass’n v. FCC, 295 F.3d 1326 (D.C.
Cir. 2002).............................................................................................. 26, 31
*
United States v. Midwest Video Corp., 406 U.S. 649
(1972) ................................................................................................... 34, 35
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985) ....................................................................................60
United States v. Sw. Cable Co., 392 U.S. 157 (1968)........................ 34, 50, 52
Vernal Enters., Inc. v. FCC, 355 F.3d 650 (D.C.
Cir. 2004).......................................................................................................2
Virgin Islands Tel. Corp. v. FCC, 198 F.3d 921
(D.C. Cir. 1999)...........................................................................................32
WBEN, Inc. v. FCC, 396 F.2d 601 (2d Cir. 1968) ..........................................49
Western Union Int’l v. FCC, 568 F.2d 1012 (2d Cir.
1977)............................................................................................................43

ADMINISTRATIVE DECISIONS

Appropriate Regulatory Treatment for Broadband
Access to the Internet Over Wireless Networks,
22 FCC Rcd 5901 (2007) ............................................................... 11, 19, 52
Cellular Report & Order, 86 FCC 2d 469 (1981) ..................................... 9, 51
Deployment of Wireline Services Offering Advanced
Telecommunications Capability, 13 FCC Rcd
24012 (1998) ...............................................................................................55
Inquiry Concerning the Deployment of Advanced
Telecommunications Capability to All Americans
in a Reasonable and Timely Fashion
, Seventh
Broadband Progress Report and Order on
Reconsideration, 26 FCC Rcd 8008 (2011) ................................................55
Inquiry Concerning the Deployment of Advanced
Telecommunications Capability to All Americans
in a Reasonable and Timely Fashion
, Sixth
Broadband Deployment Report, 25 FCC Rcd
9556 (2010) .................................................................................................55
v

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 8 of 135
Interconnection and Resale Obligations Pertaining
to Commercial Mobile Radio Services, 11 FCC
Rcd 18455 (1996), petition for review denied,
Cellnet Commc’ns v. FCC, 149 F.3d 429 (6th Cir.
1998)............................................................................................................52
Interconnection and Resale Obligations Pertaining
to Commercial Mobile Radio Services, 11 FCC
Rcd 9462 (1996) ..........................................................................................51
Interconnection and Resale Obligations Pertaining
to Commercial Mobile Radio Services, Order on
Reconsideration, 14 FCC Rcd 16340 (1999) ..............................................52
Orloff v. Vodafone Airtouch Licenses LLC, D/B/A
Verizon Wireless, 17 FCC Rcd 8987 (2002), aff’d
Orloff v. FCC
, 352 F.3d 415 (D.C. Cir 2003) .............................................37
Preserving the Open Internet, 25 FCC Rcd 17905
(2010), pet. for review pending, Verizon v. FCC,
D.C. Cir. Nos. 11-1155 & 11-1156 (filed Sept.
30, 2011)......................................................................................................53
Reexamination of Roaming Obligations of
Commercial Mobile Radio Service Providers and
Other Providers of Mobile Data Services
, 25
FCC Rcd 4181 (2010) .................................................................... 14, 18, 38
Reexamination of Roaming Obligations of
Commercial Mobile Radio Service Providers, 22
FCC Rcd 15817 (2007) ........................................ 8, 9, 10, 11, 38, 39, 44, 51

STATUTES AND REGULATIONS

5 U.S.C. § 706(2)...............................................................................................3
15 U.S.C. § 1 ...................................................................................................16
28 U.S.C. § 2342(1) ..........................................................................................2
47 U.S.C. § 152(a)...........................................................................................52
47 U.S.C. § 153(11) ................................................................................. 34, 53
47 U.S.C. § 153(51) ..................................................................... 19, 22, 29, 53
47 U.S.C. § 153(53) ........................................................................................19
47 U.S.C. § 201 ...............................................................................................10
vi

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 9 of 135
47 U.S.C. § 201 et seq. ....................................................................................15
47 U.S.C. § 201(b).............................................................................................7
47 U.S.C. § 202 ...............................................................................................10
47 U.S.C. § 202(a)...................................................................................... 7, 37
47 U.S.C. § 208 ...............................................................................................17
47 U.S.C. § 209 ...............................................................................................17
47 U.S.C. § 301 ...............................................................................................20
47 U.S.C. § 301 et seq. ......................................................................................5
47 U.S.C. § 303 ...............................................................................................20
*
47 U.S.C. § 303(b).......................................................................... 5, 22, 28, 48
*
47 U.S.C. § 303(g).......................................................................... 6, 22, 28, 47
*
47 U.S.C. § 303(r) .......................................................................... 6, 22, 28, 47
47 U.S.C. § 309 .............................................................................. 6, 20, 22, 28
47 U.S.C. § 309(j)(3).......................................................................................48
*
47 U.S.C. § 316 ............................................................................ 20, 22, 28, 49
47 U.S.C. § 316(a).............................................................................................6
47 U.S.C. § 332(c)(1) ....................................................................................6, 7
47 U.S.C. § 332(c)(2) ............................................................... 8, 18, 22, 29, 53
47 U.S.C. § 332(d)(1)........................................................................................8
47 U.S.C. § 332(d)(3)........................................................................................8
47 U.S.C. § 402(a).............................................................................................2
47 U.S.C. § 402(b)(5)........................................................................................2
47 U.S.C. § 541(c).................................................................................... 36, 53
47 U.S.C. § 543 ...............................................................................................36
47 U.S.C. § 1302 ................................................................................ 20, 24, 53
47 U.S.C. § 1302(a).........................................................................................54
47 U.S.C. § 1302(b) ........................................................................................54
47 U.S.C. § 1302(d)(1)....................................................................................54
47 C.F.R. § 20.12(d)..................................................................... 10, 39, 40, 44
vii

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47 C.F.R. § 20.12(e) ........................................................................................44
47 C.F.R. § 20.3 ......................................................................................... 8, 11
* Cases and other authorities principally relied upon are marked with
asterisks.

viii

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 11 of 135

GLOSSARY

3G
Third generation mobile
broadband service
Act
The Communications Act of
1934, as amended
AT&T AT&T
Corp.
Br.
Brief
CMRS Commercial
mobile
radio
service
Commission or FCC
Federal Communications
Commission
J.A.
Joint
Appendix
Verizon
Cellco Partnership d/b/a Verizon
Wireless
ix

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 12 of 135
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NOS. 11-1135 & 11-1136
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS,
APPELLANT/PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
APPELLEE/RESPONDENTS.
ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
BRIEF FOR RESPONDENTS

JURISDICTION

The Order on review was released on April 7, 2011, and a summary
thereof was published in the Federal Register on May 6, 2011.
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) (“Order”) (J.A. 1), 76 Fed. Reg. 26199
(May 6, 2011). Cellco Partnership d/b/a/ Verizon Wireless (“Verizon”) filed
its appeal (Case No. 11-1135) and its petition for review (Case No. 11-1136)

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 13 of 135
of the Order on May 13, 2011. This Court’s jurisdiction rests on 47 U.S.C.
1
§ 402(a) and 28 U.S.C. § 2342(1).

STATEMENT OF ISSUES

“Data roaming” allows consumers to obtain data services over their
cellular phones and other mobile devices when they travel outside their own
wireless provider’s network coverage area, by relying on another wireless
provider’s network. For example, data roaming may be necessary for a
customer who lives in West Virginia to access the Internet in Washington,
D.C., using her “smartphone.” In the Order on review, the Federal
Communications Commission (“FCC” or “Commission”) found that some
wireless providers were refusing to negotiate data roaming arrangements with
other providers, and that this was preventing seamless nationwide access to

1 Verizon’s notice of appeal in Case No. 11-1135 asserts that the Order
modifies its wireless licenses within the meaning of 47 U.S.C. § 402(b)(5).
Notice of Appeal, Case No. 11-1135, at 2 (filed May 13, 2011). Section
402(b), however, does not apply to license modifications effectuated by a
generally applicable rulemaking order (like the Order challenged here), rather
than in a licensee-specific adjudication. See, e.g., Celtronix Telemetry, Inc. v.
FCC
, 272 F.3d 585, 587, 589 (D.C. Cir. 2001) (dismissing section 402(b)
appeal of FCC order that “alter[ed] the term[s] of existing licenses by
rulemaking” and instead accepting concurrently filed petition for review
under 47 U.S.C. § 402(a)). Because sections 402(a) and 402(b) provide
“mutually exclusive” channels for review of FCC orders, the Court should
dismiss Case No. 11-1135 for want of jurisdiction and hear the petition for
review filed under section 402(a) in Case No. 11-1136. Vernal Enters., Inc.
v. FCC
, 355 F.3d 650, 655 (D.C. Cir. 2004).
2

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 14 of 135
mobile data services. The Commission accordingly required providers of
mobile data services to offer to negotiate data roaming arrangements with
other such providers, while leaving the providers broad flexibility to agree on
individualized terms on a case-by-case basis. The questions presented are as
follows:
1. Whether the FCC acted within its statutory authority when it
adopted a rule requiring facilities-based providers of commercial mobile data
services to offer to negotiate individually tailored data roaming arrangements
with other such providers on commercially reasonable terms.
2. Whether the FCC acted within its discretion under the
Administrative Procedure Act, 5 U.S.C. § 706(2), in concluding that the rule
it adopted is in the public interest.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are appended to this brief.

COUNTERSTATEMENT OF THE CASE

Propelled by the increasing popularity of smartphones (like Apple’s
iPhone) and tablets (like the iPad), consumer demand for mobile Internet
access has exploded in recent years. Today, tens of millions of Americans
rely on wireless devices to access mobile broadband service for business or
personal use. The utility of mobile broadband service, however, is seriously
3

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 15 of 135
eroded if consumers lose connectivity when they travel (or “roam”) outside
their own wireless provider’s network coverage area. Data roaming
agreements between service providers address this problem and thereby
expand consumer access to nationwide mobile broadband service.
In a notice-and-comment rulemaking proceeding, the FCC considered
the need for rules addressing data roaming arrangements between providers
of mobile broadband service. The administrative record showed that wireless
providers had been unable to secure data roaming arrangements – that would
enable them to offer the nationwide coverage needed for a competitive
product offering – with AT&T and Verizon (by far the two largest wireless
providers, whose networks use wide swaths of FCC-licensed spectrum across
the country).
On that record, the FCC in the Order on review exercised its authority
under Title III of the Communications Act of 1934, among other statutory
provisions, to adopt a rule that requires facilities-based providers of
commercial mobile data services to offer to negotiate data roaming
agreements with each other on individualized terms and conditions. In
addition to facilitating consumer access to nationwide mobile broadband
service, the FCC found that the rule would promote investment in and
4

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 16 of 135
deployment of mobile broadband networks as well as competition among
multiple providers of mobile data services.
Verizon – alone among all commercial mobile data services providers
– now challenges the FCC’s data roaming rule in this Court.

COUNTERSTATEMENT OF THE FACTS

I.

STATUTORY AND REGULATORY BACKGROUND

1. Title III of the Communications Act of 1934, 47 U.S.C. §§ 301 et
seq. (“the Act”), grants the Commission broad authority to oversee radio
transmission in the United States. Section 301 provides that “[i]t is the
purpose of this [Act], among other things, to maintain the control of the
United States over all the channels of radio transmission; and to provide for
the use of such channels, but not the ownership thereof, by persons for
limited periods of time, under licenses granted by Federal authority.” 47
U.S.C. § 301. To further that broad purpose, various provisions of section
303 of the Act authorize the FCC, subject to what the “public convenience,
interest, or necessity requires,” to “[p]rescribe the nature of the service to be
rendered by each class of licensed stations and each station within any
2
class,” to “encourage the larger and more effective use of radio in the public

2 47 U.S.C. § 303(b).
5

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 17 of 135
3
interest,” and to “prescribe such restrictions and conditions, not inconsistent
with law, as may be necessary to carry out the provisions of this [Act]” in the
4
public interest. In addition, section 316 authorizes the FCC to modify
existing licenses to impose new conditions on the licensee’s operations if
“such action will promote the public interest, convenience, and necessity, or
the provisions of this [Act] . . . will be more fully complied with.” 47 U.S.C.
§ 316(a).
To date, the Commission has exercised its Title III authority to allocate
wireless communications spectrum for use on both a “common carrier” and
“private carriage” basis. Common carriage historically involved the filing of
tariffs, and prior review and approval of rates by the Commission, to ensure
that they were cost-based and not discriminatory. See Orloff v. FCC, 352
F.3d 415, 419-20 (D.C. Cir. 2003) (describing traditional common-carrier
regulation). In recent decades and with Congressional approval (see 47
U.S.C. § 332(c)(1)), the Commission determined that competitive market
conditions allowed it to relax some of the traditional attributes of common-
carrier regulation for wireless carriers, and it thus dispensed with tariffing

3 Id. § 303(g).
4 Id. § 303(r); see also id. § 309 (providing for conditions on the grant of
spectrum licenses).
6

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 18 of 135
requirements and ex ante rate review. Orloff, 352 F.3d at 419. But the
Commission has continued to enforce the core common-carrier requirements
(set out in sections 201 and 202 of the Act, 47 U.S.C. §§ 201(b) and 202(a))
that rates and terms of common-carriage wireless services must be just,
reasonable and not unreasonably discriminatory. Orloff, 352 F.3d at 419.
A common carrier that is eligible for regulatory flexibility may
negotiate rates and terms with a particular customer, but the resulting rates
and terms conform to common-carriage principles because the carrier must
make them available to other similarly situated customers as well.
Competitive Telecomms. Ass’n v. FCC, 998 F.2d 1058, 1063-64 (D.C. Cir.
1993). Thus, despite recent regulatory flexibility, the essential distinction
between common-carrier and non-common-carrier services remains that the
former are provided “indifferently” to all comers, while the latter are
provided on the basis of “individualized decisions, in particular cases,
whether and on what terms to deal.” Nat’l Ass’n of Regulatory Util. Comm’rs
v. FCC, 525 F.2d 630, 641 (D.C. Cir. 1976) (“NARUC I”).
As required by Congress, the Commission’s rules provide for common-
carrier treatment of commercial mobile radio service, or “CMRS.” 47 U.S.C.
§ 332(c)(1). CMRS is defined as a mobile service that is “provided for
profit,” “interconnected” to the public switched telephone network, and
7

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 19 of 135
available on a common-carrier basis – i.e., “[a]vailable to the public, or to
such classes of eligible users as to be effectively available to a substantial
portion of the public.” 47 C.F.R. § 20.3; see 47 U.S.C. § 332(d)(1) (defining
“commercial mobile service”).
By contrast, “private mobile radio services” are mobile services that do
not qualify as CMRS or “the functional equivalent” of CMRS. 47 C.F.R.
§ 20.3; see also 47 U.S.C. § 332(d)(3) (parallel definition of “private mobile
service”). “A person engaged in the provision of a service that is a private
mobile service shall not, insofar as such person is so engaged, be treated as a
common carrier.” 47 U.S.C. § 332(c)(2).
2. Roaming allows subscribers of one wireless carrier to use the
network facilities of another “host” provider when making calls.
Reexamination of Roaming Obligations of Commercial Mobile Radio Service
Providers, 22 FCC Rcd 15817, 15819 (¶ 5) (2007) (“2007 Order”). Roaming
is essential to wireless communications when the subscriber is outside the
geographic reach of his or her provider’s wireless towers and other network
facilities. Pursuant to the Communications Act, the FCC has adopted policies
designed to make roaming available to users of common-carrier CMRS
almost since the advent of such services. These policies have contributed
substantially to the expansion of wireless services to reach “more than 300
8

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 20 of 135
million mobile voice subscribers,” virtually all of whom have “access to
nationwide voice services and roaming.” Order, 26 FCC Rcd at 5479
(Statement of Chairman Genachowski) (J.A. 69).
In 1981, the FCC adopted “manual” roaming requirements – under
which the CMRS subscriber establishes a relationship directly with the
roaming host provider (for example, by giving that provider a credit card
number). Order ¶ 3 (J.A. 2) (citing Cellular Report & Order, 86 FCC 2d 469
(1981)). In 2007, the Commission stated that CMRS providers also had a
common-carrier duty to provide “automatic” roaming services – which do not
5
require subscribers to establish separate relationships with the host provider
– to other carriers upon just, reasonable and nondiscriminatory rates, terms,
and conditions. Order ¶ 4 (J.A. 3) (citing 2007 Order, 22 FCC Rcd at 15818
(¶ 1)). The FCC determined at that time that the manual and automatic
roaming obligations applied, subject to certain technical specifications, to
CMRS carriers’ “real-time, two-way switched voice or data services . . . that
are interconnected with the public switched network” (“interconnected
roaming”). Order ¶ 4 (J.A. 3) (citing 2007 Order, 22 FCC Rcd at 15837
(¶ 54)).

5 With automatic roaming, the subscriber’s own provider establishes a pre-
existing contractual arrangement for roaming services with the host provider.
Order ¶ 3 n.2 (J.A. 2).
9

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 21 of 135
Thus, before the Order on review, roaming obligations (1) applied only
to interconnected services (principally roaming for wireless “voice” calls),
and (2) consistent with the statutory classification of CMRS as common
carriage, required that roaming be provided on the same terms to similarly
situated customers. To implement this common-carriage obligation, the FCC
further established a presumption (codified at 47 C.F.R. § 20.12(d)) that one
wireless carrier’s request for automatic interconnected roaming from another
wireless carrier must be accommodated under sections 201 and 202 of the
Act, 47 U.S.C. §§ 201 & 202, as long as the requesting carrier’s network is
technologically compatible with the host’s network. Order ¶ 4 (J.A. 3)
(citing 2007 Order, 22 FCC Rcd at 15831 (¶ 33)).

II.

THE ORDER

ON REVIEW
1. Data Roaming Requests for Comment. At the same time it
established automatic roaming obligations for interconnected services in
2007, the FCC also sought comment on whether it should adopt roaming
requirements for non-interconnected data services – “including information
services or other non-CMRS services offered by CMRS carriers.” Order ¶ 6
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6
(J.A. 4) (citing 2007 Order, 22 FCC Rcd at 15845 (¶ 77)). In 2010, the FCC
sought further comment and a refreshed record on this issue.
Of the approximately two dozen interested parties that filed formal
comments with the agency – including most major providers of mobile data
services – only AT&T and Verizon opposed data roaming requirements.
Order ¶ 12 (J.A. 7).
2. Data Roaming Rule. Based on the record compiled in response to
the 2007 and 2010 requests for public comment, the FCC adopted a data
roaming rule requiring facilities-based providers of commercial mobile data
services to offer to negotiate individualized data roaming agreements with
7
other such providers on commercially reasonable terms. Order ¶ 1 (J.A. 1).

6 In 2007, the Commission concluded that mobile wireless broadband
Internet access service (one of the core consumer services facilitated under
carriers’ data roaming arrangements) is not CMRS because “such broadband
service is not an ‘interconnected service.’” Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Wireless Networks
, 22
FCC Rcd 5901, 5917-18 (¶ 45) (2007) (“2007 Wireless Broadband Order”)
(“Mobile wireless broadband Internet access services do not ‘give subscribers
the capability to communicate to or receive communications from all other
users
on the public switched network.’”) (quoting 47 C.F.R. § 20.3).
7 A “commercial mobile data service” is “any mobile data service that is not
interconnected with the public switched network but is (1) provided for
profit; and (2) available to the public or to such classes of eligible users as to
be effectively available to the public.” Order ¶ 1 n.1 (J.A. 2) (emphasis
added).
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USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 23 of 135
a. The FCC determined that a data roaming rule would “promote
consumer access to seamless mobile data coverage nationwide;”
“appropriately balance the incentives for new entrants and incumbent
providers to invest in and deploy advanced networks across the country;” and
“foster competition among multiple providers in the industry.” Order ¶ 13
(J.A. 8).
These anticipated benefits were especially important because, with the
rapid growth of smartphone usage, mobile data services were becoming “an
increasingly significant part of the lives of American consumers,” who
“expect to be able to have access to the full range of services . . . wherever
they go.” Order ¶¶ 14, 15 (J.A. 8-9). Yet, the record indicated that the
availability of data roaming arrangements would be critical to enabling
consumers to have a competitive choice of facilities-based providers offering
nationwide access to mobile data services. Id. ¶ 15 (J.A. 9-10). The FCC
found, for instance, that without roaming service from the major carriers,
consumers in rural areas – “where mobile data services may be solely
available from small rural providers” – would lose mobile broadband access
whenever they traveled outside their providers’ small geographic license
areas. Id. ¶ 15 & n.51 (J.A. 9). And even in areas served by large national
networks, the FCC determined, the unavailability of data roaming
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arrangements could hamper the competitive viability of smaller providers that
might offer high-quality or low-cost service where they have a network, but
would be unable to offer service of sufficient geographic scope to serve the
needs of some customers. Id. ¶ 15 & n.52 (J.A. 9).
Rejecting claims by AT&T and Verizon that a data roaming rule was
unnecessary because voluntary agreements will be reached without
regulation, the FCC credited comments by numerous industry participants
that they had “encountered significant difficulties obtaining data roaming
arrangements on advanced ‘3G’ data networks, particularly from the major
nationwide providers.” Order ¶ 24 (J.A. 14). The FCC found that, although
AT&T had been offering retail 3G data services since 2005 and was
providing coverage to 275 major metropolitan areas by May 2008, it did not
enter into any data roaming agreements for that service until the FCC was
days away from adopting a mandatory data roaming requirement. Order ¶ 25
(J.A. 14-15). Similarly, Verizon “had only nine [3G data] roaming
agreements as of April 2010, even though its [3G] network ha[d] been in
operation since October of 2003.” Id. ¶ 26 (J.A. 15-16). The FCC noted that
the major carriers’ negotiation of a handful of roaming arrangements for data
services after the FCC’s 2010 request for comment on a data roaming rule
“may have been the result of large providers seeking to defuse an issue under
13

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active Commission consideration and may not accurately reflect the ability of
the requesting providers to obtain roaming arrangements in the future” if the
8
agency declined to adopt a data roaming rule. Order ¶ 27 (J.A. 16).
The FCC further found that the benefits of a data roaming requirement
would not be limited to meeting consumers’ expectations. “[B]y ensuring
that providers wanting to invest in their networks can offer subscribers a
competitive level of mobile network coverage,” a data roaming requirement
also would “encourage investment in and deployment of broadband networks
by multiple service providers, including large nationwide providers, regional
providers and small providers.” Order ¶ 16 (J.A. 10). The record showed
that data roaming could be particularly critical during a provider’s “early
period of investment and buildout” in a market, because it enables the

8 The FCC’s prior experience gave it additional reason to doubt that data
roaming agreements would be forthcoming in the absence of a rule. The FCC
noted that, in 2007, it had declined to require carriers to provide
interconnected roaming to requesting carriers in the requester’s licensed
service areas on the assumption that carriers would voluntarily negotiate such
agreements while they built out their facilities within their areas of license. In
2010, however, the agency recognized that the exclusion “reduc[ed] the
availability of home roaming arrangements” – and accordingly eliminated it.
Order ¶ 27 (J.A. 16) (quoting Reexamination of Roaming Obligations of
Commercial Mobile Radio Service Providers and Other Providers of Mobile
Data Services
, 25 FCC Rcd 4181, 4195 (¶¶ 26, 28) (2010) (“2010
Reconsideration”
)).
14

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company to enter the market with “a competitive level of local coverage.” Id.
¶ 18 (J.A. 11); see also id. ¶ 19 (J.A. 11-12) (citing record evidence).
Balanced against the substantial benefits of the data roaming rule – in
the form of increased investment in broadband networks, increased
competitive choice for consumers, and related benefits, such as lower prices,
increased data usage, and incentives for providers to develop innovative data
services, Order ¶¶ 28-31 (J.A. 17-18) – the FCC determined that any costs
associated with the rule were relatively small, id. ¶ 32 (J.A. 19). The
Commission stressed that “neither AT&T nor Verizon state that they would
invest less under a roaming obligation,” id. ¶ 33 (J.A. 19), and the rule allows
roaming hosts to insist on terms that protect their networks against congestion
or technically incompatible uses, id. ¶ 35 (J.A. 20).
b. In adopting the new rule, the FCC expressly declined the request of
several industry participants to impose a data roaming obligation as a
common-carriage duty under Title II of the Communications Act, 47 U.S.C.
§§ 201 et seq. See Order ¶ 70 (J.A. 37). Instead, the FCC required
commercial mobile data service providers to offer to negotiate data roaming
arrangements with other such providers. Order ¶ 1 (J.A. 1). The host
provider is free to insist on any “commercially reasonable” term or condition
for roaming that it thinks appropriate given the “individualized
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USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 27 of 135
circumstances,” and is not required “to serve all comers indiscriminately on
the same or standardized terms.” Order ¶ 45 (J.A. 23). While providers may
9
not engage in conduct that “unreasonably restrains trade,” id., the
Commission emphasized that it expected the flexible “standard of
commercial reasonableness” to “accommodate a variety of terms and
conditions in data roaming,” Order ¶ 81 (J.A. 41). See also id. ¶¶ 68 (J.A.
35) (“providers will have flexibility with regard to roaming charges, subject
to a general requirement of commercial reasonableness”), 78 (J.A. 40) (“duty
to offer data roaming arrangements on commercially reasonable terms and
conditions will allow for greater flexibility and variation in terms and
conditions”). The agency emphasized that the Order does not subject
covered providers to a common-carriage requirement of “just, reasonable and
nondiscriminatory” rates, terms, and conditions. Order ¶ 68 & n.198 (J.A.
35).

9 The Commission’s analysis under the Communications Act and its
implementing regulations is distinct from the analysis the Department of
Justice would perform under the antitrust laws, and the rules at issue here
should not be viewed as setting forth standards for determining whether
particular conduct would violate the antitrust laws. For example, whether
conduct “unreasonably restrains trade” in violation of the Order (see ¶¶ 45,
85 (J.A. 23, 42)) is not determined by whether it would violate section 1 of
the Sherman Act, 15 U.S.C. § 1.
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The FCC specified other express freedoms allowed under the rule. The
rule permits hosts to deny roaming to requesting providers either when those
providers are not technologically compatible, or when it is not technically or
economically feasible to provide roaming in connection with the particular
data service for which roaming is requested. Id. ¶¶ 43, 46-47 (J.A. 22-23, 23-
24). Responding to AT&T’s concerns and rejecting requests by many
commenters for a broader rule, id. ¶ 48 & nn. 135-137 (J.A. 24-25), the
agency also specified that a host reasonably is allowed to condition the
availability 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 that on which the requesting provider
seeks to roam, id. ¶¶ 43, 48 (J.A. 22-23, 24-25). Finally, the FCC explained
that host providers are free to negotiate “commercially reasonable measures
to safeguard quality of service against network congestion that may result
from roaming traffic or to prevent harm to their networks.” Id. ¶ 52 (J.A. 26).
Under the new data roaming rule, enforcement is subject to case-by-
case adjudication – either through complaint procedures that the FCC
established, or through declaratory ruling proceedings. Order ¶ 75 (J.A. 39).
The FCC determined, however, that because these enforcement procedures do
not arise under sections 208 and 209 of the Act, 47 U.S.C. §§ 208 & 209
17

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 29 of 135
(which specifically provide for a damages remedy against common carriers),
damages – which are available for violations of the interconnected roaming
rules – are not available for violations of the data roaming rule. Order ¶ 76
(J.A. 39). The FCC also declined to impose time limits for data roaming
negotiations, finding that some negotiations may be more complex than
others, and “[a] single time limit for all negotiations” therefore “would not be
appropriate.” Id. ¶ 84 (J.A. 42).
The FCC rejected the contentions of AT&T and Verizon that its data
roaming requirements would violate the limitation in section 332(c)(2) of the
Communications Act that “[a] person engaged in the provision of a service
that is a private mobile service shall not, insofar as such person is so engaged,
be treated as a common carrier for any purpose under this [Act].” 47 U.S.C.
§ 332(c)(2). The FCC found it unnecessary to decide whether some or all
forms of data roaming are private mobile services subject to the common-
10
carriage limitation. This issue had no practical significance because, for
reasons the agency explained in detail, the Order does not impose a common-

10 See Order ¶ 59 (J.A. 29) (noting MetroPCS’s argument that data roaming
is a pure common-carriage transmission service); 2010 Reconsideration, 25
FCC Rcd at 4216-17 (¶ 68) (noting that the provision of roaming access to
information services can involve either transmission of the packets to the
roaming subscriber’s native network or direct support of the information
service by the host provider).
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carriage obligation. See Order ¶ 68 (J.A. 34) (the “data roaming rule[] we
adopt do[es] not amount to treating mobile data service providers as
‘common carriers’ under the Act”). The FCC likewise rejected Verizon’s
contention that the rule violates the prohibition (now codified in 47 U.S.C.
§ 153(51)) against imposing common-carrier regulation on non-
11
telecommunications services. See Order ¶¶ 60, 68 (J.A. 29, 34-36).
In that regard, AT&T and Verizon had argued to the FCC that their few
existing data roaming agreements did not involve common carriage because
they were not “‘undertaking to carry for all people indifferently.’” Order
¶ 68 & n.197 (J.A. 35) (citing Verizon filing). Verizon, for instance, stressed
in the agency’s proceeding that it made “‘individualized decisions, in
particular cases, whether and on what terms to deal’ with potential roaming
12
partners.” And it described its voluntary, non-common carriage practice as
a “commercially reasonable, market-based approach” that was “in no way

11 Like the dichotomy between CMRS (subject to common-carrier
treatment) and “private mobile service” (not subject to such treatment), the
Communications Act distinguishes between a “telecommunications service”
(subject to common-carrier treatment) and an “information service” (not
subject to such treatment). See 47 U.S.C. § 153(51), (53). The 2007 Wireless
Broadband Order
classified mobile broadband Internet access as an
“information service.” 22 FCC Rcd at 5909-14 (¶¶ 19-34).
12 Reply Comments of Verizon Wireless at 32 (July 12, 2010) (J.A. 397)
(quoting Verizon Wireless Comments at 31-32 (June 14, 2010) (J.A. 248-
49)).
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USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 31 of 135
intended to freeze out potential roaming partners.” Verizon Reply Comments
at 32 n.102 (J.A. 397) (emphasis added). Similarly, AT&T stated that it did
not offer data roaming on a common-carrier basis, because it “does not have a
standing roaming offer to all similarly situated providers, but rather
13
negotiates specific contracts on an individualized, case-by-case basis.”
Pointing to the providers’ own recognition that their “commercially
reasonable” data roaming arrangements did not involve common carriage, the
FCC explained why the Order similarly does not impose a common-carriage
obligation:
The rule we adopt will allow individualized service
agreements and will not require providers to serve all comers
indifferently
on the same terms and conditions. Providers can
negotiate different terms and conditions on an individualized
basis, including prices, with different parties. The commercial
reasonableness of terms offered to a particular provider may
depend on numerous individualized factors . . . [and are not
subject to] common carrier obligation[s] under Sections 201
and 202 of the Act. . . .
Order ¶ 68 (J.A. 35-36) (emphasis added).
The FCC identified express statutory authority for its data roaming
requirement under Title III of the Communications Act. Order ¶¶ 62-64
(J.A. 30-33) (citing, e.g., 47 U.S.C. §§ 301, 303, 309, 316, 1302). The
underlying “public interest” standard, which applies to virtually all

13 AT&T Inc. Comments at 19 (June 14, 2010) (J.A. 100).
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Commission actions under Title III, was also satisfied by, for example,
facilitating consumer access to ubiquitous wireless broadband service and
encouraging investment in and buildout of advanced data services. Order ¶¶
63-64 (J.A. 32-33).
Finally, the FCC rejected Verizon’s contention that the data roaming
rule unlawfully imposed either a physical or regulatory taking of the host
provider’s property. Order ¶ 69 (J.A. 36-37). The agency explained that “the
issuance of an FCC license does not provide the licensee with any rights that
can override the Commission’s proper exercise of its regulatory power over
the spectrum.” Id. In any event, there could be no takings violation because
an opportunity to obtain “just” compensation is guaranteed under the
“commercially reasonable” standard embedded in the data roaming rule. Id.

SUMMARY OF ARGUMENT

1.
The FCC’s interpretation of the Communications Act is subject
to review under the deferential standards of Chevron USA, Inc. v. NRDC, 467
U.S. 837 (1984), which apply to an administrative agency’s construction of
its governing statute, including interpretive questions that implicate the
agency’s jurisdiction, Transmission Agency of N. California v. FERC, 495
F.3d 663, 673 (D.C. Cir. 2007).
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2.a. The FCC properly adopted the Order pursuant to Title III of the
Communications Act, which directs the Commission to condition and modify
radio licenses in order to manage spectrum in the public interest. Order
¶¶ 61-64 (J.A. 29-33) (citing, e.g., 47 U.S.C. §§ 303(b), 303(g), 303(r), 309,
316). Those sections, which also supplied the statutory basis for voice
roaming rules dating back to the 1980s, give the Commission “expansive”
powers and a “comprehensive” mandate, Nat’l Broad. Co. v. United States,
319 U.S. 190, 219 (1943), which “limits the practical scope of responsible
judicial review,” Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1043, 1048 (7th
Cir. 1992).
Verizon contends (Br. 19, 24-41) that the data roaming requirement
nevertheless violates specific statutory prohibitions – contained in 47 U.S.C.
§§ 153(51) and 332(c)(2) – against common-carrier regulation of non-CMRS
services and information services. That argument is misdirected because the
Commission declined to impose common-carrier obligations on host
providers of data roaming services. Order ¶ 68 (J.A. 34-36). The data
roaming rule does “not require [host] providers to serve all comers
indifferently on the same terms and conditions,” a requirement that Verizon
itself described as the “sine qua non” of common-carrier treatment. Id. ¶ 68
& n.197 (J.A. 35). Indeed, the Commission’s rule contemplating individually
22

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negotiated data roaming agreements on commercially reasonable terms
“tailored to individualized circumstances,” id. ¶ 45 (J.A. 23), sounds very
much like Verizon’s description of its voluntary data roaming practices
before the Order – which Verizon cited as proof that data roaming need not
be common carriage. See Verizon Reply Comments at 32 & n.102 (J.A.
397).
Nor is there any merit to Verizon’s argument that the data roaming rule
for non-interconnected wireless services imposes a requirement that is
substantially identical to the common-carrier obligation of just, reasonable
and nondiscriminatory rates and terms that has long been applicable to
providers of interconnected CMRS (including voice services). The Order
makes clear that providers may negotiate for any individualized terms for
data roaming that are within the broad bounds of commercial reasonableness
– a standard that permits the Commission to consider numerous factors,
including whether the potential host’s position is “tantamount to a refusal to
offer data roaming” or “unreasonably restrains trade,” but does not require the
host to treat similarly situated providers the same. Order ¶¶ 85, 86 (J.A. 42-
43); accord id. ¶ 45 (J.A. 23). By contrast, a common-carriage requirement
obligates the provider to make like services available to all similarly situated
customers on equivalent terms. Competitive Telecomms. Ass’n v. FCC, 998
23

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F.2d at 1063-64. Verizon’s suggestion (Br. 37-41) that the Commission, in
adjudicating data roaming disputes, will impose common-carriage
requirements notwithstanding the agency’s express statement to the contrary
(Order ¶ 68 (J.A. 34-36)) is unripe and, in any event, meritless.
b.
Even if the data roaming requirement did impose a common-
carriage requirement, which it does not, the rule would be authorized by
section 706 of the Telecommunications Act of 1996, 47 U.S.C. § 1302. See
Order ¶ 64 (J.A. 32-33). The common-carriage limitations in sections
153(51) and 332(c)(2) only apply to common-carrier treatment under the
Communications Act of 1934, as amended. Section 706 is not part of the
Communications Act and thus is not subject to those limitations.
c.
The data roaming rule does not “raise a substantial takings issue”
that would warrant a narrowing construction of the FCC’s statutory authority
under Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441 (D.C. Cir. 1994). The Bell
Atlantic rule only applies to per se takings, such as permanent physical
occupations of a provider’s property, and is premised on the assumption that
a taking would expose the public fisc to a claim for compensation. Bldg.
Owners and Managers Ass’n Int’l v. FCC, 254 F.3d 89, 99 (D.C. Cir. 2001).
Data roaming involves delivery of electronic signals, which is not a physical
taking. Cablevision Sys. Corp. v. FCC, 570 F.3d 83, 98 (2d Cir. 2009). And
24

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 36 of 135
the availability of commercially reasonable compensation under negotiated
data roaming agreements eliminates any possibility of government liability
even if a taking were to occur.
3.
Finally, Verizon’s perfunctory attack (Br. 56-59) under the
deferential arbitrary-and-capricious standard of the Administrative Procedure
Act (“APA”) similarly fails. The treatment of data roaming as non-common
carriage poses no unexplained departure from the Commission’s prior
decisions to treat roaming for interconnected CMRS as common carriage. In
determining the need for a data roaming rule, the Order cited record evidence
that many wireless providers were encountering “significant difficulties [in]
obtaining data roaming arrangements,” particularly from AT&T and Verizon.
Order ¶¶ 24-27 (J.A. 14-17). Verizon provides no basis for concluding that
the Commission abused its broad discretion in predicting that the new rule
will benefit the public. Order ¶¶ 28-36 (J.A. 17-20).

ARGUMENT

The Commission’s data roaming rule differs fundamentally from the
common-carriage rule many wireless providers supported, and AT&T and
14
Verizon opposed, in the agency’s proceeding. For its part, Verizon now
finds it necessary to take the litigation position that the Commission will give

14 AT&T has not joined Verizon’s judicial challenge to the rule.
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USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 37 of 135
wireless providers less operational freedom than the Commission has clearly
said it will allow. Indeed, Verizon challenges a rule the Commission did not
adopt. Because Verizon’s challenges are inconsistent with both the relevant
facts and the relevant law, they should be rejected.

I.

DEFERENTIAL STANDARDS OF REVIEW APPLY IN
THIS CASE

1. Review of the FCC’s interpretation of provisions of the
communications laws – including the applicability of common-carriage
principles under those laws – is governed by Chevron USA, Inc. v. NRDC,
467 U.S. 837. See, e.g., U.S. Telecom Ass’n v. FCC, 295 F.3d 1326, 1332
(D.C. Cir. 2002). If the intent of Congress is clear from the statutory
language, “that is the end of the matter.” Chevron, 467 U.S. at 842-843. But
if the statutory language does not reveal the “unambiguously expressed intent
of Congress” on the “precise question” at issue, id., the Court must accept the
agency’s interpretation as long as it is reasonable and “is not in conflict with
the plain language of the statute,” Nat’l R.R. Passenger Corp. v. Boston &
Maine Corp., 503 U.S. 407, 417 (1992). Judicial deference is particularly
appropriate where, as here, the interpretive questions implicate the FCC’s
judgment under the statutory “public interest, convenience, and necessity”
standard, because “Congress has delegated” that judgment “to the
26

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 38 of 135
Commission in the first instance.” FCC v. WNCN Listeners Guild, 450 U.S.
582, 596 (1981) (internal quotation marks omitted).
“In determining whether [an agency] has acted beyond its jurisdiction,
[this Court] grant[s] [the agency] Chevron deference.” Transmission Agency
of N. California, 495 F.3d at 673 (citation omitted). Verizon claims
otherwise (Br. 22-23, 27-28 n.7), relying on American Library Ass’n v. FCC,
406 F.3d 689 (D.C. Cir. 2005), but that case says no such thing. In American
Library Association, the Court explicitly “appl[ied] the familiar standards of
review enunciated . . . in Chevron.” Id. at 698. Although the Court
ultimately determined that the FCC had not “acted pursuant to delegated
authority” and, accordingly, was due no interpretive deference in that
instance, id. at 699, it did so not because jurisdictional statutes are subject to a
heightened standard of review, but because, in the circumstances of that case,
the agency’s reading of the Communications Act was foreclosed by the plain
meaning of the statutory text, id. at 700. See also Transmission Agency of N.
California, 495 F.3d at 673 (describing American Library Association as a
case decided under Chevron Step 1).
2. Verizon’s contentions (Br. 56-59) that the FCC acted arbitrarily and
capriciously in violation of the APA are likewise reviewed under a highly
deferential standard. Under that standard, the Court “presume[s] the validity
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USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 39 of 135
of the Commission’s action and will not intervene unless the Commission
failed to consider relevant factors or made a manifest error in judgment.”
Consumer Electronics Ass’n v. FCC, 347 F.3d 291, 300 (D.C. Cir. 2003).
Moreover, where the FCC’s decision “rest[s] on judgment and prediction
rather than pure factual determinations,” “complete factual support for the
[FCC’s] ultimate conclusions is not required, since a forecast of the direction
in which [the] future public interest lies necessarily involves deductions
based on the expert knowledge of the agency.” WNCN Listeners Guild, 450
U.S. at 594-95 (internal quotation marks omitted).

II.

THE DATA ROAMING RULE IS WITHIN THE FCC’S
STATUTORY AUTHORITY

A. The FCC Correctly Determined That The Data Roaming

Rule Is Within Its Authority Under The
Communications Act.

The FCC determined that multiple provisions in Title III of the
Communications Act empowered it to adopt its data roaming rule in service
of an array of evident public interest benefits, including the promotion of
competition and investment in mobile broadband services and ubiquitous
consumer access to such networks and services. Order ¶¶ 62-67 (J.A. 30-34)
(citing, e.g., 47 U.S.C. §§ 303(b), 303(g), 303(r), 309, 316). The “public
interest” standard – a component of all of the Title III provisions on which
the FCC relied – “invests the Commission with an enormous discretion and
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correspondingly limits the practical scope of responsible judicial review.”
Schurz Commc’ns, 982 F.2d at 1048. Accord WNCN Listeners Guild, 450
U.S. at 593. Not surprisingly, therefore, Verizon’s primary challenge to the
data roaming rule is that the Order conflicts with an express, but narrow,
statutory prohibition – the prohibition on common-carriage treatment
contained in 47 U.S.C. §§ 332(c)(2) and 153(51). Verizon Br. 27-41. As we
explain below, Verizon’s claim fails because the Order does not impose a
common-carriage obligation.
1.

The Data Roaming Requirement Does Not Impose A
Common-Carriage Obligation On Host Providers.

a. The FCC emphasized that its data roaming requirement does “not
require [host] providers to serve all comers indifferently on the same terms
and conditions.” Order ¶ 68 & n.198 (J.A. 35). As Verizon itself argued
before the FCC, this is the “‘sine qua non’” of common-carrier treatment.
Letter from John T. Scott, Verizon, to FCC Secretary, at 3 (Mar. 30, 2011)
(J.A. 546) (quoting Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 533
F.2d 601, 608-09 (D.C. Cir. 1976) (“NARUC II”)); see also Verizon Br. 29
(“the hallmark of common carriage is ‘a duty to hold out facilities
indifferently for public use’”) (quoting FCC v. Midwest Video Corp., 440
U.S. 689, 707 n.16 (1979) (“Midwest Video II”)); Sw. Bell Tel. Co. v. FCC,
19 F.3d 1475, 1481 (D.C. Cir. 1994) (“[T]he indiscriminate offering of
29

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 41 of 135
service on generally applicable terms . . . is the traditional mark of common
carrier service.”).
“A common carrier does not ‘make individualized decisions, in
particular cases, whether and on what terms to deal.’” Midwest Video II, 440
U.S. at 701 (quoting NARUC I, 525 F.2d at 641). Thus, as this Court has put
the matter, “[i]f the carrier chooses its clients on an individual basis and
determines in each particular case ‘whether and on what terms to serve’ and
there is no specific regulatory compulsion to serve all indifferently, the entity
is a private carrier for that particular service.” Sw. Bell Tel. Co., 19 F.3d at
1481 (quoting NARUC II, 533 F.2d at 608-09).
The Order only requires host providers to offer to enter into
“individually negotiated data roaming arrangements with commercially
reasonable terms and conditions.” Order ¶ 68 (J.A. 35). The terms and
conditions for which the potential host bargains may be “tailored to
individualized circumstances without [hosts] having to hold themselves out to
serve all comers indiscriminately on the same or standardized terms.” Id.
¶ 45 (J.A. 23). Verizon acknowledged before the agency that the type of
arrangement ultimately required in the Order “decidedly [is] no[t]” common
carriage. Verizon Reply Comments at 32 (J.A. 397) (emphasis added). See
id. & n.102 (J.A. 397) (asserting that it employed a “commercially
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reasonable, market based approach” to data roaming, which “is in no way
intended to freeze out potential roaming partners” but involves
“individualized decisions, in particular cases, whether and on what terms to
deal”). Consistent with Verizon’s former position, the Commission
concluded that the data roaming rule – which relies on a “commercially
reasonable” approach that allows for “individualized decisions” – “do[es] not
. . . treat[] mobile data service providers as ‘common carriers’ under the Act.”
Order ¶ 68 (J.A. 34-36).
That reasonable Commission determination is entitled to deference.
See U.S. Telecom Ass’n v. FCC, 295 F.3d at 1332 (according the FCC
deference in interpreting and applying common-carriage status under the
Communications Act); AT&T v. FCC, 572 F.2d 17, 24 (2d Cir. 1978)
15
(same). Indeed, even apart from the deference due to the agency’s

15 Verizon asserts, contrary to this precedent, that the Commission is
entitled to no deference in its determination that the data roaming requirement
does not impose common carriage, because “‘[t]he common law definition of
common carrier is sufficiently definite as not to admit of agency discretion.’”
Br. 37-38 n.7 (quoting NARUC I, 525 F.2d at 644). The Court in NARUC I,
however, was merely “reject[ing] those parts of the [FCC] Orders [that]
impl[ied] unfettered discretion in the Commission to confer or not confer
common carrier status on a given entity.” NARUC I, 525 F.2d at 644
(emphasis added). Here the Commission claims no such “unfettered
discretion,” and nothing in NARUC I undermines the routine application of
Chevron deference to the agency’s interpretations of its governing statute.
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reasonable determination, the same conclusion would follow if this Court
were to address the question de novo.
Because it allows hosts to insist upon commercially reasonable terms
“tailored to individualized circumstances, without having to hold themselves
out to serve all comers indiscriminately on the same or standardized terms,”
Order ¶ 45 (J.A. 23), the Order does not compel “whether and on what terms
to serve” customers, NARUC II, 533 F.2d at 608-09, and contains “no
specific regulatory compulsion to serve all indifferently,” Sw. Bell Tel. Co.,
19 F.3d at 1481. Accordingly, the individualized arrangements contemplated
by the Order are the antithesis of common carriage. See, e.g., Virgin Islands
Tel. Corp. v. FCC, 198 F.3d 921, 925 (D.C. Cir. 1999) (upholding FCC
decision to treat provider of submarine fiber optic cable systems as a non-
common carrier where it “would have to engage in negotiations with each of
its customers on the price and other terms which would vary depending on
the customers’ capacity needs, duration of the contract and technical
specifications”); Sw. Bell Tel. Co., 19 F.3d at 1481 (concluding that
provider’s dark fiber offerings, which were “individually tailored
arrangements negotiated to last for periods of five to ten years,” were not
common-carrier services); NARUC I, 525 F.2d at 643 (upholding FCC
classification of certain special mobile service systems as private carriage
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where providers would “negotiate with and select future clients on a highly
individualized basis”).
b. Verizon contends (Br. 30-32) that the Order deprives host providers
of “discretion over whether and with whom to deal,” and that that supposed
feature of the Order – “standing alone” – compels the conclusion that the
FCC imposed an impermissible common-carrier requirement. Verizon is
wrong.
Verizon reads out of the concept of common carriage its defining
attribute – the duty to hold out facilities “indifferently,” Midwest Video II,
440 U.S. at 707 n.16, or “indiscriminate[ly],” Sw. Bell Tel. Co., 19 F.3d at
1481, i.e., on nondiscriminatory terms. If Verizon were correct that any
restriction on a provider’s discretion over “whether and with whom to deal”
is, “standing alone” (Br. 32), enough to create a common-carriage obligation,
it would make no sense for courts to focus on the terms ultimately offered by
the provider – i.e., whether the same offering is made available
“indifferently” or “indiscriminate[ly]” to all potential customers who want it.
See Midwest Video II, 440 U.S. at 701 (focusing on whether “individualized
decisions” are made in “particular cases,” including “whether and on what
terms to deal”) (quoting NARUC I, 525 F.2d at 641) (emphasis added); Sw.
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Bell Tel. Co., 19 F.3d at 1481 (“whether and on what terms to serve”)
(quoting NARUC II, 533 F.2d at 608-09) (emphasis added).
Supreme Court precedent further makes clear that not every regulatory
limitation on the terms and conditions of providing a communications service
involves a common-carriage mandate. If non-common carriers were entitled
to absolute discretion over who may use their communications networks and
for what purposes, then the cable television rules that the Supreme Court
upheld in United States v. Sw. Cable Co., 392 U.S. 157 (1968), and United
States v. Midwest Video Corp., 406 U.S. 649 (1972) (“Midwest Video I”), as
valid exercises of the FCC’s statutory authority over broadcasting, would
have been invalidated on the basis that they imposed impermissible common-
16
carrier obligations. The rules challenged in Southwestern Cable, among
other things, required cable systems to carry, upon request, “the signals of
broadcast stations into whose service area they brought competing signals,”
and to avoid same-day duplication of local broadcast station programming on

16 The Communications Act prohibits broadcast licensees from being
treated as common carriers. 47 U.S.C. § 153(11). At the time of the Midwest
Video
cases, cable regulations rested on the FCC’s authority to regulate
broadcasting. See Midwest Video II, 440 U.S. at 703-09; see also Order ¶ 65
(J.A. 33). Accordingly, the statutory prohibition on common-carrier
treatment of broadcasters applied to cable regulation and was the basis for the
Court’s invalidation of certain cable access rules in Midwest Video II. 440
U.S. at 700.
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another channel. Midwest Video I, 406 U.S. at 659 (plurality opinion). The
rules challenged in Midwest Video I required cable operators, in addition to
carrying broadcast signals, to devote a portion of their facilities to providing
original “cablecast” programming. 406 U.S. at 652-54. Both sets of rules
limited cable operators’ discretion regarding who could use their systems and
what could be carried over them, and both were upheld, notwithstanding the
statutory prohibition on treating broadcasting as common carriage.
To the same effect, in Midwest Video II, the Supreme Court held that
the fairness doctrine, which required broadcasters to provide fair coverage of
each side of a public issue, did not mandate common carriage because – just
like the data roaming requirement – it preserved “a wide range of licensee
discretion.” 440 U.S. at 705 n.14.
The portion of Midwest Video II on which Verizon relies (Br. 27-30)
involved very different circumstances. Because the public-access rules struck
down there required cable systems “to hold out dedicated channels on a first-
come, nondiscriminatory basis,” the Government reasonably conceded that
they could be viewed as a form of “common carriage-type” regulation. 440
U.S. at 701-02 (emphasis added); see also Order ¶¶ 65, 68 n.203 (J.A. 33, 35-
36). By contrast, the Order’s data roaming requirement calls for individually
negotiated arrangements and does “not require [host] providers to serve all
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comers indifferently on the same terms and conditions.” Order ¶ 68 (J.A.
35).
Verizon notes that the public access rules struck down in Midwest
Video II “restricted what operators could ‘charge for the privileges of access
and use of facilities and equipment.’” Br. 28 (quoting Midwest Video II, 440
U.S. at 694). But regulatory review of pricing cannot be the dividing line
between common and private carriage. The Communications Act, for
instance, contemplates FCC regulation of cable rates, 47 U.S.C. § 543,
notwithstanding an express statutory prohibition on regulation of cable
systems as common carriers “by reason of providing any cable service,” id.
17
§ 541(c).
c. Verizon also points to Orloff v. FCC, 352 F.3d at 418-20, and Iowa
Telecomms. Servs. v. Iowa Utils. Bd., 563 F.3d 743, 750 (8th Cir. 2009), in
which this Court and the Eighth Circuit found that individually negotiated
contracts can in some instances co-exist with common-carrier status. In
Orloff, section 332(c) required that CMRS carriers be treated as common
carriers subject to the prohibition in section 202(a) against unreasonable

17 Of course, the imposition of federal price controls at various times during
the 20th Century – including World War II, the Korean War, and the early
1970s – did not convert all covered service providers into common carriers
during those periods.
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discrimination, and the Court agreed with the FCC and Verizon (as
intervenor) that the Commission could lawfully rely on market forces to
ensure compliance with that statutory requirement. See 352 F.3d at 419-21.18
By contrast, in the data roaming Order, the FCC expressly “reject[ed]
rather than determine[d] how to enforce – [the] common carriage
requirement” of just, reasonable and nondiscriminatory rates, terms, and
conditions. Order ¶ 68 n.198 (J.A. 35).
Similarly, in determining that a telecommunications provider was a
common carrier notwithstanding individually negotiated contracts with
customers, the Eighth Circuit in Iowa Telecommunications Services relied on
the fact that, unlike data roaming host providers here (Order ¶ 68 n.198
(J.A. 35)), the provider at issue “self-certified that it is a common carrier” and
“ma[de] public its intent to act as a common carrier” for the services at issue.
19
563 F.3d at 749. As a result, and unlike data roaming hosts, the provider in

18 Dicta in Orloff describe Verizon’s challenged practice as the “offer[ing
of] concessions to some customers and not others, even though there is no
discernable difference between the two groups.” 352 F.3d at 420-21. But
Verizon explained that it “made concessions in a nondiscriminatory manner”
because “[a]ll customers … would be equally likely to be offered or not
offered a concession” in the competitive Cleveland voice services market at
issue. Orloff v. Vodafone Airtouch Licenses LLC, D/B/A Verizon Wireless, 17
FCC Rcd 8987, 8995 (¶ 16) (2002), aff’d Orloff v. FCC, 352 F.3d 415.
19 NARUC II, which Verizon cites (Br. 38) for the proposition that
“‘preferential rate structures’ amounting to ‘price discrimination’ did not
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Iowa Telecommunications Services had an obligation to make its individually
negotiated offerings available to similarly situated customers. 563 F.3d at
750 & n.6. Verizon identifies no case, and we are aware of no case, in which
a carrier such as Verizon that seeks to enter into individualized arrangements
and does not wish to provide a common-carriage service on generally
available terms, and is supported in that desire by its regulator, has been
deemed by a court to be a common carrier. The holding Verizon seeks here
is, in short, unprecedented.
d. Verizon next contends that roaming for commercial mobile data
services must involve a common-carrier obligation because the FCC has
stated that “automatic roaming” for voice and other interconnected services is
“a common carrier obligation pursuant to Sections 201 and 202 of the
Communications Act.” Br. 35 (quoting 2007 Order, 22 FCC Rcd at 15824
(¶ 18)); see also 2010 Reconsideration, 25 FCC Rcd at 4213 (¶ 64) (noting
that “the Commission found that automatic roaming is a common carrier
obligation”). Verizon has mischaracterized the agency’s orders.

defeat common-carrier status,” involved rules that generally required cable
systems to offer “first-come, nondiscriminatory access” to their leased access
channels. 533 F.2d at 609. By contrast, the Order imposes no such “first-
come, nondiscriminatory access” requirement on host providers.
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The FCC has never said in any decision that all forms of roaming –
including the data roaming rule just recently adopted – is inherently common
carriage. Rather, the older decisions cited by Verizon were describing Rule
20.12(d) – a rule that requires roaming for interconnected services to be
provided “to any technologically compatible, facilities-based CMRS carrier
on reasonable and not unreasonably discriminatory terms and conditions,
pursuant to Sections 201 and 202 of the Communications Act,” 47 C.F.R.
§ 20.12(d) – and stressed that roaming, “as a common carrier obligation”
under its rules, “d[id] not extend to” non-interconnected services. 2007
Order, 22 FCC Rcd at 15819 (¶ 2) (emphasis added). Indeed, while Verizon
generally miscasts roaming as an undifferentiated obligation that invariably
entails common-carrier treatment, see, e.g., Br. 16, 35, it ultimately admits
that “the FCC classified roaming as a common-carrier obligation in the
particular context of voice services,” id. at 35 (emphasis added) – i.e., those
services for which the FCC imposed a classic common-carriage obligation
not to impose unreasonably discriminatory rates, terms, and conditions
pursuant to Title II of the Communications Act.
Accordingly, the FCC did not act inconsistently with its prior precedent
by creating a non-common carrier roaming obligation applicable to non-
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interconnected data services that are not subject to the agency’s preexisting
rules for voice and other interconnected services.
e. Nor is there any merit to Verizon’s claim that the “commercially
reasonable terms” standard adopted in the Order is, in substance, identical to
the common-carriage requirement of just, reasonable and non-discriminatory
rates, terms, and conditions. Br. 33-37.
The roaming rule that the FCC previously adopted for voice and other
interconnected services expressly applies the common-carriage standards of
sections 201(b) and 202(a) – just, reasonable and nondiscriminatory rates,
terms, and conditions, see 47 C.F.R. § 20.12(d) – while the data roaming rule
does “not require providers to serve all comers indifferently on the same
terms and conditions,” Order ¶ 68 (J.A. 35). See also id. ¶ 68 n.198 (“we
here reject—rather than determine how to enforce—a common carriage
requirement of ‘just and reasonable’ rates, terms, and conditions”). Unlike
the common-carriage context, where providers are obligated to offer the same
terms to a similarly situated requesting party, the Commission emphasized
that the “commercially reasonable” standard applicable to data roaming
agreements will allow for considerable flexibility in negotiating terms with
wide room for variation. See, e.g., Order ¶¶ 68 (J.A. 35) (“providers will
have flexibility with regard to roaming charges, subject to a general
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requirement of commercial reasonableness”), 78 (J.A. 40) (“duty to offer data
roaming arrangements on commercially reasonable terms and conditions will
allow [for] greater flexibility and variation in terms and conditions”), 81 (J.A.
41) (“the standard of commercial reasonableness is one that we expect to
accommodate a variety of terms and conditions in data roaming”).
Reflecting the considerable leeway that hosts have to agree upon
individualized terms for data roaming, the Order lists factors the Commission
may consider in determining the commercial reasonableness of the particular
negotiating position at issue. In contrast to the “similarly situated”
framework that applies to common carriage, these factors include broader and
more flexible considerations – such as the impact of the roaming terms and
conditions on investment incentives, whether the parties already have
roaming arrangements (including for interconnected services) with each
other, whether other potential roaming partners are available, and whether the
potential host’s position “[is] tantamount to a refusal to offer . . . data
roaming” or “unreasonably restrains trade.” Order ¶¶ 85, 86 (J.A. 42-43);
compare Competitive Telecomms. Ass’n v. FCC, 998 F.2d at 1063-64 (a
common-carriage requirement obligates the provider to make like services
available to all similarly situated customers on equivalent terms). Because
the rule for commercial data roaming allows service to be provided
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exclusively pursuant to individually negotiated agreements on “commercially
reasonable terms and conditions tailored to individualized circumstances,”
and does not require that such agreements be made available to similarly
situated customers, it does not compel common carriage. See Order ¶ 45
(J.A. 23) (noting that hosts will not “hav[e] to hold themselves out to serve all
comers indiscriminately on the same or standardized terms”).
Verizon contends that the Commission in effect imposed a requirement
of indiscriminate service by stating, when discussing enforcement of the new
rule, that “[a]s discussed above, providers can negotiate different terms and
conditions, including prices, with different parties, where differences in terms
and conditions reasonably reflect actual differences in particular cases.” Br.
32-33 (quoting Order ¶ 85 (J.A. 42)). Not so. The quoted statement
expressly does not define the “commercial reasonableness” standard and
merely indicates that, in an administrative proceeding where the Commission
is asked to enforce the substantive standard of “commercially reasonable
terms,” the FCC will consider, among many factors (see Order ¶ 86 (J.A. 42-
43)), the host’s reason for declining a request for treatment similar to that
accorded to another requesting provider and whether that proffered reason has
a basis in fact. Order ¶ 85 (J.A. 42). Unlike enforcement of common-carrier
requirements, in which the Commission evaluates potentially discriminatory
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conduct under common law and statutory precedent, the focus in a data
roaming enforcement proceeding would be whether the provider’s conduct in
negotiations was within the bounds of legitimate commercial considerations,
and the impact of that conduct on competition and consumers. Order ¶¶ 68,
86 (J.A. 34-36, 42-43).
Indeed, it is not difficult to conceive of terms that would be
commercially reasonable, but nonetheless would violate the classic common-
carrier requirement of just, reasonable and nondiscriminatory rates, terms,
and conditions. Consider, for example, a situation where a host offers a 20%
discount to the first roaming partner that successfully negotiates an
agreement, but declines the discount to all later requesters. Such a position
20
would involve discriminatory rates in violation of common-carriage rules –
but likely would be justified under the commercial reasonableness standard,
so long as the host is not “freez[ing] out [other] potential roaming partners.”
See Verizon Reply Comments at 32 n.102 (J.A. 397) (denying the existence
of such a company policy).

20 See, e.g., American Trucking Ass’n v. FCC, 377 F.2d 121, 130-34 (D.C.
Cir. 1966) (affirming FCC order prohibiting unreasonably discriminatory
discounted service); Western Union Int’l v. FCC, 568 F.2d 1012, 1017-19 (2d
Cir. 1977) (same).
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The data roaming rule also differs substantially from the roaming rules
applicable to CMRS (i.e., voice and other interconnected services) in that the
CMRS rules “presume that a request by a technologically compatible CMRS
carrier for automatic roaming is reasonable [and thus must be honored]
pursuant to Sections 201 and 202 of the Communications Act.” 47 C.F.R.
§ 20.12(d); see also 2007 Order, 22 FCC Rcd 15817 (¶ 33) (discussing
presumptions under CMRS automatic roaming rule). Verizon’s unsupported
assertion notwithstanding, see Br. 19, the data roaming rule imposes no
comparable presumption. It creates an obligation to “offer” a commercially
reasonable arrangement to an eligible requesting provider, but adopts no
presumption one way or the other regarding the reasonableness of any request
or resulting offer. See 47 C.F.R. § 20.12(e). Indeed, even the duty to “offer”
a data roaming arrangement is subject to “specified limitations, such that a
host provider may not have an obligation to offer data roaming arrangements
to a requesting provider.” Order ¶ 80 n.237 (J.A. 40); see id. ¶¶ 43, 46, 47
(J.A. 22-24).
Verizon finally relies on the similarity between some factors that
inform the FCC’s analysis of whether hosts have complied with voice and
data roaming obligations to argue that those obligations are “essentially the
same.” Br. 36. But an “overlap[]” (Verizon Br. 36) in the issues the
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Commission may consider in determining compliance with two different
substantive standards (e.g., whether alternative roaming partners are
available) does not make the standards one and the same.
Nor is Verizon’s position advanced by its observation that some
limitations on the data roaming obligation (for instance, that roaming need
not be negotiated where the providers’ networks are technologically
incompatible or roaming is technically infeasible) “mirror” similar limitations
on the voice roaming requirement. Br. 37. These limitations are protections
for the host provider, not obligations it incurs. Thus, the overlap ensures
wireless data providers every measure of flexibility accorded wireless voice
providers – plus the additional flexibility of being able to negotiate
customized arrangements as non-common carriers.
Verizon ultimately falls back to a purely rhetorical assertion (Br. 39)
that the FCC will not apply the Order as written, and differences between
commercial reasonableness under the data roaming rule and the common-
carrier standards of sections 201 and 202 will prove to be a “linguistic shell
game.” In this facial challenge to the data roaming rule, Verizon provides no
basis to question the agency’s clear statement that it will not apply the
common-carrier standard in ruling on data roaming disputes. See Lichoulas
v. FERC, 606 F.3d 769, 779 n.8 (D.C. Cir. 2010) (noting the “well-settled
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presumption of administrative regularity”) (citations omitted). Because such
disputes will be decided “on a case-by-case basis,” Order ¶ 85 (J.A. 42),
Verizon could bring an as-applied challenge to any future application of the
data roaming rule that departed from the Order and actually did mandate
common carriage in a particular situation. Its current claim that, contrary to
the Order’s express terms, the Commission will impose common-carriage
requirements on host providers is therefore unripe. See Sprint Corp. v. FCC,
331 F.3d 952, 956 (D.C. Cir. 2003) (“where the agency retains substantial
discretion to implement its decision, the decision is not ripe until it has been
implemented in particular circumstances”); compare Cablevision Sys. Corp.
v. FCC, 649 F.3d 695, 715 (D.C. Cir. 2011) (finding claim to be ripe because
“petitioners’ claims rest[] not on the assumption that the [Commission] will
exercise its discretion unlawfully in applying the regulation but on whether its
faithful application would violate the law”) (internal quotation markets
omitted).
2.

Specific Grants of Authority In The Communications
Act Expressly Authorize The FCC To Manage
Spectrum And To Impose Conditions On Licenses To
Further The Public Interest, Convenience, And
Necessity.

Stripped of its mistaken claim that the Order imposes an impermissible
common-carriage requirement, Verizon is left to argue that the FCC’s
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mandate under Title III of the Communications Act is limited to “technical
issues” concerning the classification of stations by service type, the
assignment of stations to particular frequency bands, power limits, and the
avoidance of interference. Br. 46. Verizon’s cramped reading of the
Commission’s authority finds no support in the statute or governing
precedent.
First, the Supreme Court long ago made clear that “[t]he
[Communications] Act itself establishes that the Commission’s [Title III]
powers are not limited to the engineering and technical aspects of radio
communication.” NBC, 319 U.S. at 215 (upholding FCC regulations limiting
competitively restrictive chain broadcasting practices). Among the
provisions establishing this principle are section 303(g), which directs the
FCC to “‘encourage the larger and more effective use of radio in the public
interest’” and section 303(r), which empowers the FCC “to adopt ‘such rules
and regulations and prescribe such restrictions and conditions, not
inconsistent with law, as may be necessary to carry out the provisions of this
Act.’” Id. at 217 (quoting 47 U.S.C. §§ 303(g) & (r)). Those provisions
provide “expansive” powers and a “comprehensive” mandate, 319 U.S. at
219, and refute Verizon’s long-rejected premise that the FCC is simply “a
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kind of traffic officer, policing the wave lengths to prevent stations from
interfering with each other,” id. at 215.
Verizon is also wrong in claiming that the data roaming rule is
unrelated to Congress’s grants of regulatory authority under Title III. In
adopting the rule, the FCC relied upon the same “expansive” and
“comprehensive” section 303(g) & (r) grants of authority discussed in NBC,
finding that data roaming obligations would help “ensure that spectrum is
being put to its best and most efficient use.” Order ¶¶ 62 n.172, 64 n.178
(J.A. 31, 32). The FCC also found authority for its data roaming rule in
section 303(b), which directs the FCC, consistent with the public interest, to
“‘[p]rescribe the nature of the service to be rendered by each class of licensed
stations and each station within any class.’” Order ¶ 62 & n.173 (J.A. 31)
(quoting 47 U.S.C. § 303(b)). And the agency reasonably predicted (see
Order ¶ 63 (J.A. 32)) that the data roaming requirement will advance the
objectives of section 309, which, among other things, directs the Commission
to encourage “(A) the development and rapid deployment of new
technologies, products, and service for the benefit of the public . . . without
administrative or judicial delays . . . [and] (D) efficient and intensive use of
the electromagnetic spectrum.” 47 U.S.C. § 309(j)(3).
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Finally, the FCC stressed that its authority to advance these public
interest goals does not evaporate at the time a license is granted, but extends
to the modification of existing licenses. Order ¶ 62 (J.A. 30-31) (citing 47
U.S.C. § 316). Section 316(a)(1) provides that “[a]ny station license or
construction permit may be modified by the Commission either for a limited
time or for the duration of the term thereof, if in the judgment of the
Commission such action will promote the public interest, convenience, and
necessity.” Precedent confirms that this authority to effect modifications may
be exercised through general rulemaking proceedings “based upon the
general characteristics of an industry,” and not in licensee-specific
21
adjudications.
Verizon suggests in passing that section 303(b) of the Communications
Act authorizes the FCC only to place limitations on services offered over
radio facilities and does not empower the agency affirmatively to require the
provision of any service. Br. 49. The cases upon which Verizon relies do not
support that proposition. Those cases acknowledge the FCC’s power to

21 Order ¶ 62 & n.171 (J.A. 31) (citing, e.g., Cmty. Television, Inc. v. FCC,
216 F.3d 1133, 1140 (D.C. Cir. 2000); WBEN, Inc. v. FCC, 396 F.2d 601,
617-18 (2d Cir. 1968); California Citizens Band Ass’n v. U.S., 375 F.2d 43,
50-52 (9th Cir. 1967)). See also Celtronix Telemetry, Inc. v. FCC, 272 F.3d
at 589 (“[I]t is undisputed that the [FCC] always retained the power to alter
the term of existing licenses by rulemaking.”).
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impose limitations on services pursuant to section 303(b), but none states or
even suggests that the Commission’s authority under that section is confined
to defining service limitations. In any event, the data roaming rule
simultaneously defines the affirmative obligation of covered host providers
and limits their authorized uses of their FCC-licensed spectrum by requiring
them to comply with the rule adopted in the Order.
Nor does the data roaming rule “regulate the business” of wireless
broadband providers or “determine the validity of [their] contracts” with third
parties in a manner inconsistent with FCC v. Sanders Bros. Radio Station,
309 U.S. 470, 475 (1940), and Regents of University System of Georgia v.
Carroll, 338 U.S. 586, 602 (1950). Verizon Br. 49. Carroll simply held that
the Commission’s Title III authority was limited to regulating the licensee’s
use of spectrum and did not empower the agency to nullify third parties’
state-law contract remedies with regulated entities. See Sw. Cable, 392 U.S.
at 173 n.37 (distinguishing Carroll). And Sanders Bros. merely states the
unexceptional proposition that the Commission does not regulate aspects of a
licensee’s business that fall outside the agency’s Title III powers. 309 U.S. at
475-76. Here, the FCC has regulated the licensed radio operations of
wireless data providers without abrogating any state-law remedies.
50

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Verizon also makes no effort to square its argument with the
undisputed fact that the more rigorous common-carrier roaming requirements
applicable to CMRS (i.e., interconnected services) have, from the beginning,
22
been justified in part as an exercise of the FCC’s Title III powers. Because
Title III provides a statutory basis for those roaming rules, as Verizon does
not dispute, it also supports the data roaming requirement created by the
Order. Indeed, Verizon has never challenged the FCC’s reliance on its Title
III authority to adopt roaming requirements for interconnected services.
This analysis does not change simply because data roaming has not
been established as a common-carrier service subject to the FCC’s Title II (as
well as Title III) authority. Nothing on the face of the relevant Title III
provisions suggests such a distinction, and the Commission correctly
concluded that the application of Title III “is not affected by whether the
service using the spectrum is a telecommunications service or information
service under the Act.” Order ¶ 62 n.166 (J.A. 30) (citing, e.g., 2007

22 See Cellular Report & Order, 86 FCC 2d at 503-04, 513 (¶¶ 80, 113)
(relying on Title III in adopting initial manual roaming rule for cellular
systems); Interconnection and Resale Obligations Pertaining to Commercial
Mobile Radio Services
, 11 FCC Rcd 9462, 9469, 9471 (¶¶ 10, 13) (1996)
(extending manual roaming requirements to broadband Personal
Communications Services and certain Specialized Mobile Radio carriers
pursuant to Title III authority); 2007 Order, 22 FCC Rcd at 15849 (¶ 92)
(relying in part on Title III authority to adopt automatic roaming rules for
CMRS carriers).
51

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Wireless Broadband Order, 22 FCC Rcd at 5915 (¶ 36)). Indeed, the
Commission has often used its Title III powers to require licensees to offer
non-common carrier services to prospective customers. See, e.g.,
Interconnection and Resale Obligations Pertaining to Commercial Mobile
Radio Services, 11 FCC Rcd 18455, 18471-72 (¶ 31) (1996) (requiring
CMRS carriers to make bundled packages that include non-Title II
components available for resale pursuant to Title III), petition for review
denied, Cellnet Commc’ns v. FCC, 149 F.3d 429 (6th Cir. 1998); id., Order
on Reconsideration, 14 FCC Rcd 16340, 16352-53 (¶ 27) (1999) (reaffirming
23
that Title III provides a basis for the bundled offering resale requirement).

23 The Commission also correctly concluded that the data roaming
requirement is supported by the agency’s ancillary authority under Title I of
the Communications Act. See Am. Library Ass’n, 406 F.3d at 691-92 (FCC
may exercise ancillary jurisdiction where “(1) the Commission’s general
jurisdictional grant under Title I covers the regulated subject and (2) the
regulations are reasonably ancillary to the Commission’s effective
performance of its statutorily mandated responsibilities”). The data roaming
requirement is clearly within the agency’s jurisdiction under Title I. See, e.g.,
47 U.S.C. § 152(a) (granting FCC jurisdiction over “all interstate and foreign
communication by wire or radio”). It is also reasonably ancillary to the
agency’s effective performance of its Title III duties to manage, allocate, and
assign spectrum, and to establish spectrum usage conditions. Order ¶ 63
n.176 (J.A. 32). Among other things, the Commission found that, absent data
roaming rules, there was a significant risk that “even voice roaming will
ultimately be rolled back as voice becomes a data application.” Order ¶ 28
(J.A. 17). Cf. Sw. Cable Co., 392 U.S. at 173-74 (upholding ancillary
authority to regulate cable where necessary “to perform with appropriate
effectiveness” its Title III authority over broadcasting).
52

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B.

Section 706 Of The Telecommunications Act Of 1996
Independently Authorizes The Data Roaming Rule.

Even if the Order did impose a common-carriage obligation within the
meaning of sections 153(51) and 332(c)(2) of the Communications Act
(which, as shown above, it does not), the FCC properly asserted its
independent authority to adopt the rule pursuant to section 706 of the
Telecommunications Act of 1996, 47 U.S.C. § 1302. That is so because
sections 153(51) and 332(c)(2) only prohibit common-carriage treatment
“under this [Act]” – i.e., the Communications Act of 1934, as amended. 47
U.S.C. §§ 153(51) & 332(c)(2). Section 706 of the 1996 Act is not part of the
Communications Act of 1934, and thus is not subject to those limitations on
24
common-carrier treatment.
Section 706(a) directs that the FCC

24 Congress enacted section 706 as an uncodified part of the 1996 Act.
Congress recently codified section 706 in Chapter 12 of Title 47, at 47 U.S.C.
§ 1302. By contrast, the seven titles that comprise the Communications Act
appear in Chapter 5 of Title 47. See Preserving the Open Internet, 25 FCC
Rcd 17905, 17950 (¶ 79 n.248) (2010) (“Open Internet Order”), pet. for
review pending
, Verizon v. FCC, D.C. Cir. Nos. 11-1155 & 11-1156 (filed
Sept. 30, 2011). Notably, not all Communications Act provisions barring
common-carriage treatment are limited to treatment under “this Act.” The
prohibition in section 153(11) – that “a person engaged in radio broadcasting
shall not, insofar as such person is so engaged, be deemed a common carrier”
– contains no such limitation. 47 U.S.C. § 153(11). Nor does the statutory
requirement that “[a]ny cable system shall not be subject to regulation as a
common carrier or utility by reason of providing any cable service.” 47
U.S.C. § 541(c).
53

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shall encourage the deployment on a reasonable and timely basis of
advanced telecommunications capability to all Americans . . . by
utilizing, in a manner consistent with the public interest, convenience,
and necessity . . . measures that promote competition in the local
telecommunications market, or other regulating methods that remove
barriers to infrastructure development.
25
47 U.S.C. § 1302(a). Section 706(b) requires the FCC to inquire whether
such reasonable and timely deployment of advanced telecommunications
capability is taking place and, “[i]f the Commission’s determination is
negative,” that provision mandates that the agency “shall take immediate
action to accelerate deployment of such capability by removing barriers to
infrastructure investment and by promoting competition in the
telecommunications market.” 47 U.S.C. § 1302(b).
The FCC concluded in the Order that both of these provisions support
the data roaming rule because the rule “encourag[es] new deployment of
advanced services to all Americans by promoting competition and by
removing barriers to infrastructure investment.” Order ¶ 64 (J.A. 32).
Noting estimates that “more than 10 million Americans live in rural census
blocks with two or fewer mobile service providers,” the FCC determined that

25 “[A]dvanced telecommunications capability” includes broadband Internet
access. 47 U.S.C. § 1302(d)(1) (defining “advanced telecommunications
capability” as “high-speed, switched, broadband telecommunications
capability that enables users to originate and receive high-quality voice, data,
graphics, and video telecommunications using any technology”); see also
Open Internet Order
, 25 FCC Rcd at 17968 (¶ 117).
54

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its rule would encourage network upgrades and ubiquitous advanced mobile
26
service deployment, “including in rural areas.” Order ¶ 64 (J.A. 32-33).
Verizon responds by citing language in a 13-year-old Commission
order that could be construed as suggesting that the FCC – at that time – did
not view section 706 as an independent grant of regulatory authority. Br. 51
(citing Deployment of Wireline Services Offering Advanced
Telecommunications Capability, 13 FCC Rcd 24012, 24047 (¶ 77) (1998)
(“Advanced Services Order”)). But this Court has acknowledged that section
706 “at least arguably . . . delegate[s] regulatory authority to the
Commission,” noting that it “contain[s] a direct mandate.” Comcast Corp. v.
FCC, 600 F.3d 642, 658 (D.C. Cir. 2010). In the recent Open Internet Order,
which the FCC cited in connection with its section 706 discussion in the
Order on review (¶ 64 n.179 (J.A. 32)), the Commission rejected the position

26 In July 2010, the FCC found that “broadband deployment to all
Americans is not reasonable and timely” and observed, “[a]s a consequence
of that conclusion,” that section 706(b)’s directive to “take immediate action”
had been triggered. Inquiry Concerning the Deployment of Advanced
Telecommunications Capability to All Americans in a Reasonable and Timely
Fashion
, Sixth Broadband Deployment Report, 25 FCC Rcd 9556, 9558
(¶¶ 2-3) (2010). In May 2011, the Commission maintained its conclusion that
“broadband is not being deployed in a reasonable and timely fashion to all
Americans,” and cited the adoption of the data roaming Order as one of the
actions it had taken pursuant to section 706 in response to the previous year’s
negative finding. Id., Seventh Broadband Progress Report and Order on
Reconsideration, 26 FCC Rcd 8008, 8009, 8015 (¶¶ 1, 11) (2011).
55

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that section 706 does not contain an independent grant of regulatory
authority. See Open Internet Order, 25 FCC Rcd at 17968-72 (¶¶ 117-123).
Verizon does not even acknowledge this governing articulation of the
agency’s section 706 powers, which expressly overrules the Advanced
Services Order to the extent it is construed to deny that section 706 is an
independent grant of authority to the FCC. Id. at 17969 (¶ 119 n.370).

C. Verizon’s Fifth Amendment Argument Is Meritless, And

Provides No Basis For Displacing Chevron

Deference In
This Case.

In an effort to bolster its statutory authority argument, Verizon enlists
the canon of constitutional avoidance. Specifically, relying on Bell Atl. Tel.
Cos. v. FCC, 24 F.3d 1441, Verizon contends that the data roaming rule is
beyond the FCC’s statutory authority because it “raise[s] a substantial takings
issue in an ‘identifiable class of cases.’” Br. 52 (quoting Bell Atlantic, 24
F.3d at 1445). In such circumstances, Verizon claims, the FCC may impose a
regulatory requirement only where “Congress has expressly and specifically
directed the Commission” to do so. Br. 52. This argument is meritless.
As this Court has held, the plain statement analysis of Bell Atlantic
applies only to per se takings, such as the permanent physical occupation of
space in telephone companies’ buildings under the rules at issue in Bell
Atlantic. Bldg. Owners and Managers Ass’n Int’l v. FCC, 254 F.3d at 99. By
56

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contrast, because “regulatory taking” claims are “context-specific” and
require “‘ad hoc, factual inquiries,’” they “cannot be said to create” the
identifiable class of applications that necessarily constitutes a taking to which
the Bell Atlantic rule applies. Building Owners, 254 F.3d at 99 (quoting Penn
Central Transp. v. New York City, 438 U.S. 104, 124 (1978)). Accordingly,
“the Bell Atlantic approach to statutory interpretation” – requiring express
Congressional authorization – “does not apply” to agency rules alleged to
raise regulatory takings concerns. Building Owners, 254 F.3d at 99. Rather,
normal “Chevron analysis . . . does.” Id.
Verizon attempts to equate the data roaming rule to the physical
occupation of real estate in Bell Atlantic by claiming that the data roaming
rule requires host providers to carry “data . . . represented in electrons that
tangibly occupy limited physical space on the host carrier’s network and
physical infrastructure.” Br. 53. But the courts have squarely rejected the
view that electronic signal transport requirements – divorced from any
obligation to allow third-party personnel or equipment on a host’s property –
are physical occupations that raise per se takings concerns. See Cablevision
Sys., 570 F.3d at 98 (affirming FCC finding that mandatory electronic signal
carriage was not a permanent physical occupation of cable operator’s network
and that the takings claim “fits more comfortably within the Supreme Court’s
57

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‘regulatory taking’ analytical framework”); Qwest Corp. v. United States, 48
Fed. Cl. 672, 694 (2001) (rejecting telephone company’s claim that “the
telecommunications traffic (i.e., electrical impulses) of a competing carrier on
the host carrier’s equipment pursuant to a mandatory lease can be considered
a ‘physical taking’ of that equipment”).
The opinions Verizon cites (Br. 53) to support its contrary “electronic
occupation” theory are neither binding nor pertinent. Judge Williams’
dissenting opinion as a district judge in Turner Broadcasting merely argued
that a takings claim is “not . . . frivolous.” Turner Broad. Sys., Inc. v. FCC,
819 F. Supp. 32, 67 (D.D.C. 1993) (Williams, J., dissenting), vacated on
other grounds, 512 U.S. 622 (1994). CompuServe, Inc. v. Cyber Promotions,
Inc., 962 F. Supp. 1015 (S.D. Ohio 1997), did not involve takings law at all.
The Court, accordingly, should reject Verizon’s contention that the data
roaming rule imposes a per se taking subject to Bell Atlantic’s plain-
statement requirement.
Verizon suggests that even if the data roaming rule does not constitute
a per se taking, it nevertheless effects a regulatory taking under Penn Central,
because it allegedly interferes with investment-backed expectations. Br. 55.
Verizon provides no persuasive support for that claim, which second guesses
the expert agency’s predictive judgment that its rule will “appropriately
58

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balance the incentives for new entrants and incumbent providers to invest in
and deploy advanced networks across the country.” Order ¶ 13 (J.A. 8). In
any event, even if that regulatory takings claim were supported, it would
provide no basis to displace the Chevron deference owed the FCC’s
reasonable construction of its statutory authority to adopt the Order. Building
Owners, 254 F.3d at 99.
Finally, the Bell Atlantic rule is inapplicable because it was premised
on the concern that construing ambiguous statutes to “create[] a broad class of
takings claims, compensable in the Court of Claims, would . . . expose the
Treasury to liability both massive and unforeseen.” 24 F.3d at 1445. The
data roaming rule permits hosts to charge other providers commercially
reasonable rates that surely would satisfy the Constitution’s “reasonable
compensation” standard and avoid any claim on the public fisc. See Order
¶ 69 (J.A. 36) (“It does not appear to be possible that compensation could be
27
‘unjust’ if it is commercially reasonable.”).

27 To the extent that Verizon asserts a constitutional claim that the data
roaming rule effects a taking without “just compensation” (U.S. Const.
amend. V), rather than simply arguing that it is beyond the FCC’s authority
under the Communications Act (see Br. 55-56 & n.13), that claim is
premature. As this Court observed in Building Owners, “‘in general,
[e]quitable relief is not available to enjoin an alleged taking of private
property for a public use, duly authorized by law, when a suit for
compensation can be brought against the sovereign subsequent to that
59

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III.

THE DATA ROAMING RULE IS THE PRODUCT OF
REASONED AGENCY DECISIONMAKING

Verizon concludes with a hodgepodge of makeweight contentions that
the FCC’s data roaming Order is arbitrary and capricious. Br. 56-59.
Recycling a claim it made in challenging the FCC’s statutory authority (see
Br. 35), Verizon argues that the Order departs without explanation from prior
statements that roaming is a common-carrier obligation. Br. 56-57. As
previously explained, the FCC has never stated that all roaming inherently is
common carriage. Rather, the FCC stated in the 2007 Order and the 2010
Reconsideration that interconnected CMRS roaming under Rule 20.12(d) –
which expressly invoked the common-carriage standards of sections 201 and
202 – constitutes common carriage. By contrast, the Order (which governs
non-interconnected commercial data services) only requires host providers to
negotiate on a commercially reasonable basis and expressly does not require
common carriage. Thus, the Order did not depart from agency precedent on
this question.
Nor is there merit to Verizon’s assertion that there was no record
evidence of a data roaming problem requiring regulatory intervention. Br. 57.
The FCC expressly rejected Verizon’s evidentiary claims, see Order ¶ 12

taking.’” 254 F.3d at 99 (quoting United States v. Riverside Bayview Homes,
Inc.
, 474 U.S. 121, 127-28 (1985)).
60

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 72 of 135
n.40 (J.A. 7-8), finding abundant record evidence that requesting providers
were encountering “significant difficulties obtaining data roaming
arrangements,” particularly with respect to competitively crucial 3G services,
id. ¶ 24 (J.A. 14). Indeed, the FCC noted that AT&T and Verizon had widely
deployed advanced 3G networks for years before they began to offer limited
roaming arrangements over those networks – and their eventual change of
position occurred only when the Commission neared adoption of a mandatory
data roaming obligation. Order ¶¶ 25-26 (J.A. 14-16).
That record fully justified the FCC’s concern that the limited progress
achieved with respect to fully voluntary 3G roaming could well reflect a
tactical effort to stave off regulation, and was not necessarily indicative of
future conduct in the absence of a data roaming requirement. Order ¶ 27
(J.A. 16-17); see also pp. 13-14, above. Indeed, the prior pattern of steadfast
opposition by AT&T and Verizon to offering other providers data roaming on
their 3G networks gave the FCC ample reason for concern that, absent
regulation, those providers would “not be willing to offer roaming
arrangements . . . any time in the near future” over the fourth generation
networks they are now deploying. Order ¶ 27 (J.A. 17).
In sum, the FCC had a concrete basis in the record to conclude that the
data roaming rule was needed to promote the development of competitive
61

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facilities-based broadband data service offerings for the benefit of the public.
That predictive judgment is entitled to deference. WNCN Listeners Guild,
450 U.S. at 594-95.
Finally, Verizon invents a non-existent contradiction in the FCC’s cost-
benefit analysis (Br. 58-59) when it points to the agency’s prediction that
“providers are unlikely to rely on roaming arrangements in place of network
deployment as the primary source of their service provision” due to the
relatively high cost of purchasing roaming compared with providing service
over their own facilities. Order ¶ 21 (J.A. 13). Contrary to Verizon’s
misstatement of the FCC’s analysis, the Commission did not assert that the
data roaming rule would impose no costs on host providers because the rule
would never be invoked. Rather, the FCC credited evidence that roaming
would be used initially to develop a large enough customer base to justify
subsequent network build-out in new geographic areas, Order ¶ 19 (J.A. 11-
12), and the agency acknowledged that there may be some sparsely populated
areas where the presence of more than one facilities-based network “is simply
uneconomic,” id. ¶ 15 n.51 (J.A. 9). The FCC appropriately balanced the
limited costs of data roaming on host providers against the benefits of the
rule, and concluded that the rule was justified because the benefits
outweighed the costs. Order ¶¶ 28-36 (J.A. 17-20). Verizon neither disputes
62

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 74 of 135
the deference that the expert agency is owed in undertaking such an analysis
(see Verizon Br. 23) nor shows that the agency abused its discretion in
undertaking that analysis.

CONCLUSION

For the foregoing reasons, the Court should dismiss Verizon’s appeal
in Case No. 11-1135 for want of jurisdiction, and deny its petition for review
in Case No. 11-1136.
Respectfully
submitted,
SHARIS A. POZEN
AUSTIN C. SCHLICK
ACTING ASSISTANT ATTORNEY
GENERAL COUNSEL
GENERAL
PETER KARANJIA
CATHERINE G. O’SULLIVAN
DEPUTY GENERAL COUNSEL
FINNUALA K. TESSIER
ATTORNEYS
RICHARD K. WELCH
DEPUTY ASSOCIATE GENERAL
UNITED STATES
COUNSEL
DEPARTMENT OF JUSTICE
WASHINGTON, D.C. 20530
/s/ Laurence N. Bourne
LAURENCE N. BOURNE
COUNSEL
FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
January 9, 2012
63

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 75 of 135
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS,
APPELLANT/PETITIONER,
v.
NOS. 11-1135 & 11-
1136
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
APPELLEE/RESPONDENTS.
CERTIFICATE OF COMPLIANCE
Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying “Brief for Respondents” in the captioned case
contains 13,877 words.
/s/ Laurence N. Bourne
Laurence N. Bourne
Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
March 8, 2012

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11-1135
11-1136

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Cellco Partnership d/b/a Verizon Wireless, Appellant, Petitioner

v.

Federal Communications Commission and United States of America
Appellee/Respondent

CERTIFICATE OF SERVICE

I, Laurence N. Bourne, hereby certify that on March 8, 2012, I electronically
filed the foregoing Brief for Respondents with the Clerk of the Court for the
United States Court of Appeals for the D.C. Circuit by using the CM/ECF
system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.
Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the
foregoing document be mailed by First-Class Mail to those persons, unless
another attorney at the same mailing address is receiving electronic service.
*Andrew G. McBride
John T. Scott
Thomas R. McCarthy
Verizon Wireless
Brett A. Shumate
1300 Eye Street, N.W.
Helgi C. Walker
Suite 400 West
Wiley Rein LLP
Washington, D.C. 20005
1776 K Street, NW.
Counsel for: Cellco Partnership
Washington, D.C. 20006-2359
Counsel for: Cellco Partnership

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 134 of 135
11-1135
11-1136
Henry Weissmann
Catherine G. O’Sullivan
Munger, Tolles & Olson
Finnuala K. Tessier
355 South Grand Avenue
U.S. Department of Justice
35th Floor
Antitrust Division
Los Angeles, CA 90071-1560
950 Pennsylvania Avenue, N.W.
Counsel for: Cellco Partnership
Washington, D.C. 20530
Counsel for: USA
Mark A. Stachiw
Douglas E. Hart
General Counsel, Secretary and Vice 441 Vine Street
Chairman
Suite 4192
MetroPCS Communications, Inc.
Cincinnati, OH 45202
2250 Lakeside Boulevard
Counsel for: Cincinnati Bell
Richardson, TX 75082
Wireless, LLC
Counsel for: MetroPCS
Communications, Inc.

Richard P. Bress
Jill Canfield
*James H. Barker
4121 Wilson Boulevard
Alexander Maltas
Arlington, VA 22203
Matthew A. Brill
Counsel for: National
Latham & Watkins LLP
Telecommunications Cooperative
555 11th Street, N.W.
Association
Suite 1000
Washington, D.C. 20004
Counsel for: Leap, Cricket and RCA
*Thomas J. Sugrue
Howard J. Symons
*Luisa Lancetti
Mintz Levin Cohn Ferris, et al.
T-Mobile USA, Inc.
701 Pennsylvania Avenue, N.W.
401 9th Street, N.W.
Suite 900
Suite 550
Washington, D.C. 20004
Washington, D.C. 20004
Counsel for: T-Mobile USA, Inc.
Counsel for: T-Mobile USA, Inc.

USCA Case #11-1135 Document #1362584 Filed: 03/08/2012 Page 135 of 135
11-1135
11-1136
Caressa D. Bennet
Daniel L. Brenner
*Michael R. Bennet
Jessica L. Ellsworth
Bennet & Bennet, PLLC
Hogan Lovells US LLP
4350 East West Highway
Columbia Square
Suite 201
555 13th Street, N.W.
Bethesda, MD 20814
Washington, D.C. 20004-1109
Counsel for: Rural
Counsel for: Bright House
Telecommunications Group, Inc.
Networks, LLC
Peter M. Connolly
Harold J. Feld
Holland & Knight LLP
Public Knowledge
2099 Pennsylvania Avenue, N.W.
1818 N Street, N.W.
Suite 100
Suite 410
Washington, D.C. 20006
Washington, D.C. 20036
Counsel for: United States Cellular
Counsel for: Public Knowledge, et
Corporation
al.
Carl W. Northrop
Michael Glover
Michael L. Lazarus
Verizon
Telecommunications Law
1320 N. Courthouse Road, 9th Floor
Professionals, PLLC
Arlington, VA 22201
875 15th Street, N.W.
Counsel for: Verizon
Washington, D.C. 20005-2400
Counsel for: MetroPCS
Communications, Inc.

/s/ Laurence N. Bourne

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