On Thursday, the Federal Communications Commission (FCC) is poised to take up a rule requiring mobile broadband carriers to let others ride on their network. The data roaming rule has a number of concerning implications, beginning with abuse of private property rights, continuing with setting price controls, and ending with its arguable lack of legal authority.
Today, carriers enter into private agreements to let other carriers ride on their networks. There are hundreds of such data roaming agreements, negotiated in a free-market between competing wireless providers. The FCC’s rule could turn this on its head; instead of allowing companies to negotiate contracts and roaming prices, it could mandate that carriers enter into such agreements and set price controls for roaming at a “reasonable” rate.
Perhaps more disconcerting is that the FCC doesn’t have much legal authority to enact stringent rules. In 2007, the FCC made similar requirements on phone calls and messaging, since these commercial mobile radio services (CMRS) are already regulated as common carrier services. Broadband, however, has long been treated as an "information service" (in this case a “private mobile service”) and is not subject to the same laws that underpinned the FCC’s 2007 roaming decision on voice and text. In fact, Section 332 of the Communications Act would forbid the FCC from treating broadband data as a common carrier service.
This clearly wouldn’t be the first time the FCC had a whimsical interpretation of their own statutory authority. To give them legal backing, the FCC constantly attempted to paint broadband as a common carrier service during their push to enact Net Neutrality regulations. They even toyed with completely reclassifying the Internet as a Title II Common Carrier service – a proposal which to date they have failed to close the docket on, despite passing Net Neutrality rules late last December. Here too, it is possible the FCC will try to include Section 201 or 202 rules into the data roaming rule that would allow them to regulate “reasonable” pricing (in other words, price controls). If they do, it would be despite the fact that the section applies only to common carrier services – not to mobile broadband data.