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WASHINGTON, DC 20510
April 6, 2011
The Honorable Julius Genachowski
Chairman
Federal Communications Commission
445 12
th
Street, S. W.
Washington, D.C. 20515
Dear Chairman Genachowski:
It has come to our attention that the Commission plans on issuing an order on Data
Roaming during the April 7
th
meeting. We are writing today to express our deep concern
regarding the Commission's current direction and urge you to refrain from proceeding on this
controversial item.
The wireless industry has seen phenomenal growth since its first commercial phone call
in 1983. Today, there are over 303 million wireless subscribers in the United States. The
wireless industry employs over 250,000 people across the country with a payroll ofover $13.2
billion per year. In addition, U.S. carriers spend nearly $25 billion a year in capital investment
which is nearly a 500% increase since 1995. All ofthis has been done in the absence ofthe
heavy handed .government regulation currently under consideration. Unfortunately, the
Commission's data roaming proposal would reverse this successful hands-offapproach, and
would subject the wireless industry to rate regulation ofinformation services.
The Commission's agenda describes the Report and Order as "adopt[ing] a rule requiring
facilities-based providers ofcommercial mobile data services to offer data roaming arrangements
to other such providers on commercially reasonable terms and conditions, subject to certain
limitations." Such a requirement would impose a "duty to serve," which is a core common
carrier obligation to which telecommunications carriers are subject under Section 20I ofthe
Communications Act. While such a common carriage requirement may be appropriate for
mobile voice services, which the Commission has classified as "telecommunications services,"
such a requirement is certainly not appropriate for mobile data services, which the Commission
itselfclassified in 2007 as "information services."
Given that the Commission itselfhas acknowledged that the agency cannot impose a
common carrier obligation on a provider ofan information service, we are eager to understand
how the Commission could apparently reverse its own decision. And even ifthe terms and
conditions ofdata roaming arrangements would not have to be "just and reasonable" under the
Commission's Order, you seem to be ignoring the fact that merely requiring the provider ofa
private mobile service to "offer" data roaming subjects such a provider to a classic common
carriage obligation. In fact, Section 332(c)(2) ofthe Act states that, "a private mobile service
shall not ...be treated as a common carrier for any purpose under this Act."
In addition, we are concerned about the Commission's assertion ofstatutory authority to ;:::;
impose data roaming obligations. The current direction in this proceeding and the Open Internet~
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Proceeding suggest that, instead offollowing direct and explicit authority given to you by
Congress, you may be stretching the meaning ofcertain Communications Act provisions to
justify your pre-determined regulatory action.
The Commission's proposed Data Roaming Order threatens to undermine investment, job
growth, and innovation in the mobile broadband sector. In March 2008, the Commission
completed the 700 MHz auction. This auction brought in over $19.5 billion into the Treasury.
According to the Commission's own estimates, this was more money than a combined 68
auctions that took place over the past 15 years. The winning bidders have paid-in-fu11 for use of
the spectrum in order to bring new, robust services to consumers. These services are now being
deployed, and as a result, consumers now have access to next-generation wireless products and
services that will transform the industry and the way we use our mobile devices as well as
continue to keep America at the top oftechnological innovation.
Carriers have spent vast amounts ofcapital to get access to spectrum and deploy their
services with certainty regarding what they are allowed to do with the spectrum. Yet the
Commission now seeks to change the rules ofthe road in a material way, imposing obligations
that, ifthey had applied at the time ofauction, would have dramatically reduced the value ofthe
licenses. Ifthe Commission's new data roaming rules go into effect, auction participants will no
longer be able to bid on spectrum with regulatory certainty that the terms ofthe licenses will not
be materially and adversely changed at some point down the road. This will devalue spectrum
and reduce proceeds for the Treasury.
We need to create and foster an environment that encourages further technological
advancement and investment in wireless networks, continued deployment, increased innovation
ofwireless services and devices, and, most importantly, job creation. We fail to understand how
the Commission's proposed data roaming rules advances any ofthese goals. We respectfully ask
the Commission to reconsider moving forward on this item and avoid the uncertainty and turmoil
that will no doubt ensue.
Sincerely,
patToOmey~
United States Senator
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