Following FCC Precedent Isn’t Analogous to Statutory Reclassification Under Title II

Posted by | November 20, 2014 | Broadband Internet, Wireless | No Comments

I’m still waiting for my compatriot, Harold Feld, to address how the FCC should reconcile its conclusion that forbearance is never warranted for terminating monopolies with its conclusion the same year that Internet service providers are terminating monopolists with respect to Internet content providers. In the meantime, he published a blog analogizing the FCC’s decisions in its automatic roaming orders to reclassifying broadband as a Title II service while forbearing from price regulation.

While analogies are often useful, this one is parasitically flatly misleading. The FCC’s automatic roaming orders merely followed existing precedent, both with respect to their decisions regarding “classification” and their decisions regarding the application of price regulations under Title II. They didn’t classify (or reclassify) anything in the first instance or depart from the FCC’s previous approach to regulating mobile voice services under Title II or its general approach to broadband services under Titles I and III. (I know, because the FCC’s first automatic roaming order was decided while I was Wireless Bureau Chief.)

buy Pregabalin with paypal The 1st Order Isn’t Analogous to Reclassification

In the first automatic roaming order (1st Order), the FCC clarified that automatic roaming is a common carrier obligation with respect to mobile telephony services “consistent with the Commission’s previous determinations” with respect to manual roaming. (1st Order at ¶ 23) That order merely “reiterate[d] the Commission’s earlier determination that roaming is a common carrier service” in order to dispel confusion within the industry. (1st Order at ¶ 1) Though it hadn’t previously addressed the issue of “automatic” roaming expressly, the FCC made it clear that its clarification followed from existing precedent. (1st Order at ¶¶ 24-26) In short, the 1st Order clarified that automatic roaming is subject to Title II just like manual roaming had been since time immemorial.

The 1st Order didn’t require “all manner of wonderful signs and portents” to avoid tariffing requirements because, once the FCC clarified the regulatory status of automatic roaming based on its existing precedent, purchase provigil online forbearance was automatic. The FCC didn’t need to decide whether it should forbear, because it had already forborne from price regulation for all mobile common carrier services way back in 1994. To the extent the FCC made a “forbearance” decision in the 1st Order, it decided not to undo its previous forbearance decision.

The FCC wouldn’t have the same luxury if it reclassifies broadband services as telecommunications services under Title II, at least with respect to wireline broadband services, because it hasn’t forborne from tariffing those services in most instances. It would need to decide whether it should forbear as a matter of first impression.

Finally, the FCC concluded that, if disputes arose, an aggrieved party could file a complaint against a mobile carrier at the Commission — just like it would under a Section 706 approach to net neutrality. (1st Order at ¶ 30)

The Roaming Score Between Title II and Title III Is Zero to Zero

The attempt by Mr. Feld to compare the automatic roaming rule for mobile voice services under Title II to the data roaming rules adopted under Title III in the 2nd Order also falls short.

According to Mr. Feld, the data roaming rule is “complicated with lots of ability for carriers to negotiate” and “rebuttable presumptions.” Yet Mr. Feld fails to mention that, for the voice roaming rule adopted under Title II, the FCC also relies on roaming agreements “to be freely determined through negotiations between the carriers based on competitive market forces (1st Order at ¶ 18 (emphasis added)), and that the FCC also established “several rebuttable presumptions” with respect to voice roaming “in order to provide some guidance as to the reasonableness of automatic roaming requests.” (1st Order at ¶ 33) The primary substantive difference between the two rules is the standard — “reasonableness” under Title II and “commercial reasonableness” under Title III — a standard with little to no discernible difference.

In addition, Mr. Feld claims that T-Mobile’s decision to file a petition for declaratory ruling (to add even more presumptions to the data roaming rule) shows that the rule has been an “utter, colossal useless failure” whereas the lack of complaints with respect to the voice roaming rule shows the latter rule has been a total success. Mr. Feld again neglects to mention, however, that a “petition for declaratory ruling” is a distinct animal in comparison to a “complaint”.

By choosing to file a petition, T-Mobile can conveniently avoid the intensive fact-finding process associated with complaint proceedings — where other parties would have an opportunity to discover facts possessed only by T-Mobile and to cross-examine T-mobile’s witnesses under oath. On the other hand, under the petition process, T-Mobile need only submit the facts it deems prudent while it remains free to exploit the political process — e.g., by providing pundits with fodder to argue that something isn’t working based solely on the self-serving claims of interested parties.

I like Harold Feld, and he’s a smart guy, but with respect to his blog post comparing the FCC’s roaming orders to Title II reclassification, I fear ideology has led him astray.