Flb-OA-II 05:32pm Ffom-Houll EnlflY , Commlfel Coemlllil
202-225-1919
T-T31 P,DOI/OO. H02
Congrels of tfJe, mnittb .tattl
"ouSt at B.epr£!ttttlltibt,
lllu&inIIDn.~.c::.20515
, February 4, 20 II
,
The Honorable Julius Genachowski
Ghairman
Federal Communications Commission
445 12
th
Street; S.W.
Washington, D.C. 20515
Dear Chairman Gcnachowski:
We are concerned that you may be moving forward with a proposal 10 impose data
roaming obligations on mobile broadband service providers without having adequately answered
our previous inquiry into your authority to do so. Please take no additional action on this matter
until you have provided us with a more fuji written analysis and we have had an opportunity to
evaluate the efficacy ofyour response.
We asked in our November 23, 20 I0, letter that you "[p]lease identify what provisions in
the Communications Act give the Commission the statutory authority to regulate data roaming
and provide a basis on which the Commission can move forward with an Order" (emphasis
added). In your December 13 response to us, however, you failed to adequately explain the
authority upon which the Commission could impose data roaming obligations. Instead, you did
little more than broadly assert authority under various titles ofthe Act and summarize arguments
made by parties in the pending proceeding.
As we noted, section 153(44) ofthe CommUpications Act provides that "[a]
telecommunications carrier shall be treated as a cornmon carrier under this Act only to the extent
'that it is engaged in providing telecommunicati'ons services." Mandatory roaming, as the
Commission has acknowledged, is a common carrier obligation. Conversely, the Commission
determined in 2007 that mobile broadband services are information services, not
telecommunications services, Please explain, with specificity, how a common carrier obligation
can be imposed upon the provision ofa non-telecommunications service.
In addition, Section332(c)(~)ofthe Communications Act provides that "[11] 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/or anypurpose under ThiS Act" (emphasjs
added). Please explain how the Commission has the authority to circumvent this provision with
respect to mobile broadband services, Which is private mobile sen-ice. '
•
..
Flb-04-11 05:32pm From-Houll EnlrlY , Commlfci Commlttll
Letter to the Honorable Julius Genachowski
Page 2
202-225-1118 T-731 P. 002/004 F-502
--0'
... Weasic for aprompt reSponse to this letter. Please outline your Views, notthe views of
others,· and include as pan ofyour analysis references to specific provisions ofthe
CommunicatiQbs Act. Ifyou have any questions, don't hesitate to contact. the Republican staffof
the Committ,.e on Energy and Commerce at (202) 225-2927.
(
Sincerely,
Flb-04-11 05:32pm Frel-HoUII EnlrlY , Commlrel Committll
• Letter to the Honorable Julius Genachowski
Page 3
..
202-225-1111 T-T31 P.003/004 F-502
cc: The Honorable Henry A. Waxman, Ranking Member
The Honorable Anna Eshoo, Jr., Ranking Member
Subcommittee on Communications
'.
Flb-04-11 05:32pm From-HouslEnlr.~, Commirci Commlttll
202-225-1918
T-T31 P.004/004 F-502
Committee on Energy and Commerce
Republican Office
U.S. House of Representatives
2125 Rayburn House Office BUilding
Wasbin2ton,D.C.20515
Phone: (202) 225-2927
Fax: (202) 225-1919
To. Ms. Terri GlaZe, Director of legislative Affairs, Federal Communications CommillSlon for
Chairman Julius GenllChowski, Federal Communications Commission
Fro_ Rep. Fred Upton. Chairman, Committee on Energy and Commerce
F8>C (202) 41 Bh280B
Dat8: Februeuy 4. 2011
Phone:
4 (Including cover)