FCC Issues Backdoor Ruling Regulating Roaming Charges
The Federal Communications Commission (FCC) decided Thursday to regulate roaming charges for wireless carriers, but without allowing Commissioners to vote on the policy change.
Despite requests for a committee vote from several commissioners, FCC Chairman Tom Wheeler directed the Wireless Telecommunications Bureau, a sub-division of the FCC, to rule in favor of a petition from T-Mobile mandating “commercially reasonable terms and conditions” for roaming charges.
Roaming arrangements “enable customers of one provider to receive services from another provider’s network when they are in areas that their provider’s network does not cover.” Larger carriers naturally charge the smaller ones for this service, but “T-Mobile asserts that the data roaming marketplace is not working and that providers face difficulties negotiating data roaming agreements.”
Fred Campbell, director of the Center for Boundless Innovation in Technology and a former WTB Bureau Chief, told The Daily Caller News Foundation he “was incredibly surprised by the ruling,” because responsibility for “new and novel” rules changes is supposed to be delegated to the Commissioners.
“As a practical matter,” he added, “bureau chiefs are often told to do things by the Chairman,” but allowing a bureau to make such substantive decisions is “inconsistent with the meaning and intent of the law, and an abuse of power.”
Under the terms of the ruling, the FCC will resolve disputes on a case-by-case basis, based on whether the rate in question “substantially exceeds” the prevailing rates charged by other carriers in the domestic and international markets. (RELATED: FCC Approves Big Spending on School Internet)
“This is the FCC’s equivalent of Harry Reid’s ‘Nuclear Option’ combined with President Obama’s penchant for unilateral ‘Executive Action,’” said Berin Szoka, President of the non-partisan technology policy think tank TechFreedom. “At best, Wheeler has shattered the long-standing convention that any Commissioner can insist on a vote about a proposed Bureau action.”
“At worst,” Szoka continued, “Wheeler is violating the most fundamental requirement of the Administrative Procedure Act,” which requires that substantive rules changes “go through notice-and-comment rulemaking.”
The FCC’s two Republican Commissioners, Ajit Pai and Michael O’Rielly, had jointly asked Wheeler to allow a vote by the full Committee, but the Chairman’s office refused their request.
In a prepared statement, Commissioner Pai asserted that, “It was once said that this agency ‘is a Commission, not a sole proprietorship.’ Not today.” (RELATED: Corruption at the FCC? TV Exec’s Donate to Dem Lawmaker, Get Million-Dollar Rule Exception)
“I am not aware of a situation in which similar requests from two Commissioners for a Commission-level vote has been rejected,” he added, noting that, “the usual course is to accommodate even one request.”
Scott Cleland, Chairman of Net Competition, a group that promotes a constantly-improving internet driven by consumer demand, told the Daily Caller News Foundation that “It’s highly irregular for Commissioners to request a vote and be denied,” because “most of the Communications Act empowers the Commission, not the Chairman … it was not created to become a one-person, hierarchical Commission.”
Wheeler’s decision to shield the ruling from a Commission vote, Cleland said, raises questions about not only the ruling’s legitimacy, but also whether it would have garnered majority support from the Commission. “If he has the support of the two Democratic Commissioners, then why not vote and remove the uncertainty?” he asked.
“Right now the FCC is considering possibly the biggest regulatory decision it will ever make: classifying the internet as a public utility,” and Cleland suggested that citizens should be wary that the Commission could be excluded from that process, as well. (RELATED: The Consumer Costs of Net Neutrality)
“When you’re considering something this potentially destructive and there is huge controversy over its legality,” he elaborated, “it is time for the FCC to dot all its I’s, cross all its T’s, and follow all procedures so it’s not subject to criticism.”
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