One would think the Federal Communications Commission (FCC) had learned its lesson by now.
In the past calendar year, the FCC’s extralegal power grabs have brought judicial rebuke from a unanimous Court of Appeals for the D.C. Circuit, widespread public opposition and rare bipartisan Congressional condemnation. But instead of internalizing those lessons, the FCC has once again endeavored beyond its legal authority by voting to impose data roaming mandates on private wireless carriers. In a correspondence to the FCC, CFIF set forth the ways in which its latest rogue action is not only without legal foundation, but also unwise as a matter of public policy.
First, Section 332 of the Communications Act explicitly states that private mobile service providers “shall not be treated as a common carrier for any purpose under this Act.” By requiring wireless providers to forcibly enter agreements with other wireless carriers and allow non-customers to roam on their data networks, the FCC has violated that express provision.
Second, a vibrant market for data roaming agreements already exists, meaning that this FCC action is unnecessary. Carriers large and small already engage in very high rates of partnership, including Rural Cellular Association (RCA) members. These agreements cover 3G and even 4G networks, contrary to extremists’ claims. Indeed, numerous smaller carriers currently advertise nationwide broadband data coverage despite possessing relatively narrow license areas, meaning that they already have secured data roaming agreements. Further, the prices negotiated in roaming agreements continue to decline.
Third, the FCC’s bureaucratic intrusion into this realm will have the perverse effect of discouraging new investment and job creation in this cutting-edge sector. After all, the FCC’s mandates will create incentives to piggyback on other networks rather than invest in new ones. Carriers must be able to differentiate themselves and compete against counterpart carriers in the free market, which the FCC’s proposed mandates will undercut. As data use continues to increase and smart phones impose new demands on network capacity, the inevitable result will be congestion, delay, fewer jobs and less investment.
Today’s FCC vote thus exceeds its legal authority and undermines new investment, while ignoring the fact that data roaming agreements are already prevalent. It merely provides the latest evidence that the rogue FCC must be brought back to Earth, whether via Congress or the courts.