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

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Released: May 19, 2011
Federal Communications Commission
Washington, D.C. 20554
May 19, 2011

DA 11-917

Small Entity Compliance Guide

Reexamination of Roaming Obligations of Commercial Mobile Radio Service

Providers and Other Providers of Mobile Data Services

WT Docket No. 05-265

This Guide is prepared in accordance with the requirements of Section 212 of
the Small Business Regulatory Enforcement Fairness Act of 1996. It is intended
to help small entities--small businesses, small organizations (non-profits), and
small governmental jurisdictions--comply with the new rules adopted in the
above-referenced FCC rulemaking docket(s). This Guide is not intended to
replace the rules and, therefore, final authority rests solely with the rules.
Although we have attempted to cover all parts of the rules that might be
especially important to small entities, the coverage may not be exhaustive. This
Guide may, perhaps, not apply in a particular situation based upon the
circumstances, and the FCC retains the discretion to adopt approaches on a
case-by-case basis that may differ from this Guide, where appropriate. Any
decisions regarding a particular small entity will be based on the statute and
regulations.

In any civil or administrative action against a small entity for a violation of
rules, the content of the Small Entity Compliance Guide may be considered as
evidence of the reasonableness or appropriateness of proposed fines, penalties or
damages. Interested parties are free to file comments regarding this Guide and
the appropriateness of its application to a particular situation; the FCC will
consider whether the recommendations or interpretations in the Guide are
appropriate in that situation. The FCC may decide to revise this Guide without
public notice to reflect changes in the FCC's approach to implementing a rule,
or to clarify or update the text of the Guide. Direct your comments and
recommendations, or calls for further assistance, to the FCC's Consumer
Center:

1-888-CALL-FCC (1-888-225-5322)

TTY: 1-888-TELL-FCC (1-888-835-5322)

Fax: 202-418-0232

fccinfo@fcc.gov

COMPLIANCE REQUIREMENTS

Objectives of the Proceeding

The objective of the proceeding is to promote increased consumer access to nationwide mobile
broadband service by adopting a rule that requires facilities-based providers of commercial
mobile data services to offer data roaming arrangements to other such providers on commercially
reasonable terms and conditions, subject to certain limitations as described below. The
widespread availability of data roaming arrangements will allow consumers with mobile data
plans to remain connected when they travel outside their own provider's network coverage areas
by using another provider's network. Adoption of these requirements will promote connectivity
and nationwide access to mobile data services such as e-mail and wireless broadband Internet
access.
The data roaming requirements will help small providers maintain their ability to compete with
national providers by ensuring that subscribers of smaller providers have access to data services
when they travel outside of their provider's network coverage. Additionally, the data roaming
requirements will help to encourage investment by ensuring that small providers wanting to
invest in their networks or expand their coverage into new areas can offer subscribers a
competitive level of coverage during the early period of investment and buildout.

Background

In a number of proceedings, the Commission has found that wireless consumers have a
reasonable expectation of receiving seamless continuous nationwide commercial mobile
telephony services through roaming. For example, the 2007 Report and Order and Further
Notice of Proposed Rulemaking
relied partly on such a finding in requiring commercial mobile
radio services (CMRS) carriers to provide automatic roaming for mobile telephony services, as
well as push-to-talk and text messaging services, upon reasonable request. In the Further Notice
adopted in 2007, the Commission sought comment on whether it should extend the automatic
roaming obligation generally to non-interconnected data services or features, including
information services or other non-CMRS services offered by CMRS carriers.
Subsequently, in the 2010 Order on Reconsideration and Second Further Notice of Proposed
Rulemaking
, the Commission took further action to increase consumers' access to roaming
services by eliminating the "home roaming exclusion" that had been previously adopted as a
limitation on the automatic roaming obligation. In particular, the Commission found that the
exclusion in many circumstances had discouraged facilities-based competition. Also, in the 2010
Second Further Notice,
the Commission sought to refresh and further develop the record on data
roaming by requesting additional comment on whether to extend roaming obligations to mobile
data services, including mobile broadband Internet access, that are provided without
interconnection to the public switched telephone network.
In April 2011, the Commission adopted a requirement that providers of commercial mobile data
services offer data roaming arrangements on commercially reasonable terms and conditions,
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subject to certain limitations. The Commission implemented the data roaming obligation
pursuant to its legal authority under Title III of the Communications Act, which provides the
Commission with authority to manage spectrum and establish and modify license and spectrum
usage conditions in the public interest. The duty to offer data roaming arrangements on
commercially reasonable terms and conditions is subject to certain limitations, described more
fully below in the section entitled Rules That the Commission Amended. Additionally, under the
requirement, providers of commercial mobile data roaming services are permitted 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. Further, with respect
to any data roaming disputes, parties may file a petition for declaratory ruling under Section 1.2
of the Commission's rules or file a formal or informal complaint depending on the circumstances
specific to each dispute. Disputes would be resolved on a case-by-case basis taking into
consideration the unique facts and circumstances in each instance and parties may be required by
Commission staff to provide their best and final offers.

Important Definitions

Commercial Mobile Data Service

is any mobile data service that is not interconnected with the
public switched network and 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. Commercial mobile data
service includes services provided by Mobile Satellite Services and Ancillary Terrestrial
Component providers to the extent the services provided meet this definition.

Rules That the Commission Amended


The Commission defines commercial mobile data service as any mobile data service that
is not interconnected with the public switched network and 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. It also includes services provided by Mobile Satellite Services
and Ancillary Terrestrial Component providers to the extent the services provided meet
the definition of commercial mobile data services.

The Commission requires a facilities-based provider of commercial mobile data services
to offer roaming arrangements to other such providers on commercially reasonable terms
and conditions, subject to the following limitations: (1) providers may negotiate the terms
of their roaming arrangements on an individualized basis; (2) it is reasonable for a
provider not to offer a data roaming arrangement to a requesting provider that is not
technologically compatible; (3) it is reasonable for a provider not to offer a data roaming
arrangement where it is not technically feasible to provide roaming for the particular data
service for which roaming is requested and any changes to the host provider's network
necessary to accommodate roaming for such data service are not economically
reasonable; and (4) it is reasonable for a provider to condition the effectiveness of a
roaming arrangement on the requesting provider's provision of mobile data service to its
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own subscribers using a generation of wireless technology comparable to the technology
on which the requesting provider seeks to roam. (47 C.F.R. 20.12(e)(1))

A party alleging a violation of this data roaming requirement may file a formal or
informal complaint pursuant to the procedures in 1.716-1.718, 1.720, 1.721, and
1.723-1.735. For purposes of section 20.12(e) as referenced above, references to a
"carrier" or "common carrier" in the formal and informal complaint procedures that are
extended here, as applicable, will mean a provider of commercial mobile data services.

Regarding data roaming disputes, the Commission will resolve such disputes on a case-
by-case basis, taking into consideration the totality of the circumstances presented in each
case. The remedy of damages is not available for data roaming disputes.

Steps a Small Entity Must Take to Invoke its Rights Under the Automatic Roaming Rule

To the extent that a small entity seeks to enter into a data roaming arrangement under the
Commission's requirements, it:

Must be a facilities-based provider of commercial mobile data services.

Must make or receive a request for a data roaming arrangement.

Has a duty to respond promptly as a would-be host provider (once a request for a data
roaming arrangement is made) to the request and avoid actions that unduly delay or
stonewall the course of negotiations regarding that request.

May enter into data roaming arrangements on commercially reasonable terms and
conditions, subject to certain limitations. These limitations include the following: (1)
providers may negotiate the terms of their roaming arrangements on an individualized
basis; (2) it is reasonable for a provider not to offer a data roaming arrangement to a
requesting provider that is not technologically compatible; (3) it is reasonable for a
provider not to offer a data roaming arrangement where it is not technically feasible to
provide roaming for the particular data service for which roaming is requested and any
changes to the host provider's network necessary to accommodate roaming for such data
service are not economically reasonable; and (4) it is reasonable for a provider to
condition the effectiveness of a data roaming arrangement on the requesting provider's
provision of mobile data service to its own subscribers using a generation of wireless
technology comparable to the technology on which the requesting provider seeks to
roam.

May negotiate commercially reasonable measures to safeguard quality of service against
network congestion that may result from roaming traffic or to prevent harm to its
network.

May file a petition for declaratory ruling under Section 1.2 of the Commission's rules in
the event of a dispute or file a formal or informal complaint under the rule adopted
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depending on the circumstances specific to each dispute. The Commission will resolve
such disputes on a case-by-case basis, taking into consideration the totality of the
circumstances presented in each case.

Recordkeeping and Other Compliance Requirements

There are no additional reporting or recordkeeping requirements for small entities required by
the Commission's data roaming requirements. Parties are not required to file copies of data
roaming arrangements with the Commission. There may be some incidental recordkeeping costs
incurred to ensure compliance with the data roaming requirements and in the event a dispute
arises relating to data roaming arrangements.

Links


News Release, FCC Takes Action to Expand Consumers' Access to Mobile Broadband,
Spur Competition in the Wireless Marketplace
(rel. April 7, 2011)
http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0407/DOC-305622A1.pdf
Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers
and Other Providers of Mobile Data Services, WT Docket No. 05-265, Second Report
and Order,
76 FR 26199-26220 (2011).
http://www.gpo.gov/fdsys/pkg/FR-2011-05-06/pdf/2011-10223.pdf
Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers
and Other Providers of Mobile Data Services, WT Docket No. 05-265, Order on
Reconsideration and Second Further Notice of Proposed Rulemaking,
75 FR 22338-
22352 (2010), 75 FR 22263-22276 (2010)
http://edocket.access.gpo.gov/2010/pdf/2010-9832.pdf
http://edocket.access.gpo.gov/2010/pdf/2010-9831.pdf
News Release, FCC Takes Steps to Promote Nationwide Mobile Connectivity (rel. April
21, 2010).
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297661A1.pdf
Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers,
WT Docket No. 05-265, Report and Order and Further Notice of Proposed Rulemaking,
22 FCC Rcd 15817 (2007).
http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-07-143A1.pdf
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