Yesterday a federal appeals court upheld the Federal Communications Commissions rule, adopted in April 2011, requiring wireless carriers who provide mobile data services to offer roaming agreements to other wireless providers on commercially reasonable terms.  (For example, if a Cricket Wireless subscriber leaves that provider’s coverage area, he or she may still use data services of any carrier with whom Cricket has a data roaming arrangement.) In Cellco Partnertship v. FCC, the U.S. Court of Appeals for the D.C. Circuit found that “Title III of the Communications Act of 1934 plainly empowers the Commission to promulgate the data roaming rule.”

Although the FCC long ago adopted a limited roaming requirement for mobile voice services and has expanded voice-roaming rules in recent years, the Commission’s authority to issue similar requirements for mobile data services was at issue in this case.  While mobile voice services are subject to certain common carriage requirements of Title II of the Communications Act, which regulates similar services, such as landline telephone services, the FCC’s authority to regulate mobile data services arises only from Title III of the Act.  Mobile data services are considered “information services” and are, therefore, excluded from the definition of “common carrier” in the Act, as interpreted by the Commission. 
Continue Reading Federal Appeals Court Gives a Jolt to FCC Authority By Upholding Data Roaming Rules