Today the Federal Communications Commission (FCC) adopted new rules that will require wireless service providers offering data services to negotiate wireless data roaming deals with competitors. The new rules will require facilities-based providers of commercial mobile data services to offer data roaming arrangements to other such providers on “commercially reasonable terms and conditions,” subject to certain limitations.

To resolve any data roaming disputes, including breakdowns in negotiations, parties may file a petition for declaratory ruling under Section 1.2 of the Commission’s rules or file a formal or informal complaint, depending on the circumstances specific to each dispute. Disputes will be resolved on a case-by-case basis based on the unique facts and circumstances of each case. To enforce the new rules, the Commission’s order authorizes Commission staff to engage in “baseball-style” arbitration, through which the staff can require both parties to provide their best and final offers as part of the arbitration process.

The Commission’s decision, the text of which has not yet been released, was adopted in a 3-2 vote that fell along party lines. In their statements accompanying the measure, the Democratic Commissioners emphasized the need to foster competition in the wireless market and the Commission’s jurisdiction over wireless services under Title III as well as Section 706. In voting against the measure, both Republican Commissioners emphasized that data services provided by facilities-based wireless carriers are outside of the Commission’s authority.

Upon release of the full text, Arent Fox will release an additional Alert providing a summary and analysis. Please contact any of our attorneys for further information, including: