Court Backs FCC In Challenge To Data-Roaming Rules

Siding with the Federal Communications Commission, a federal appellate court in Washington upheld rules requiring the major wireless carriers to offer their data networks to smaller competitors. The decision means that consumers who access mobile data networks via smartphones and tablets will be able to get online even when in locales not covered by their carriers.

The FCC's data-roaming rules, passed in April of 2011 by a 3-2 vote, provide that carriers must allow regional and rural providers to purchase access to data networks on commercially reasonable terms. Verizon challenged those rules in court. Among other arguments, Verizon contended that the FCC wrongly imposed common carrier obligations on the company.

But this week, a three-judge panel of the appellate court unanimously rejected that theory. "Although the rule bears some marks of common carriage, we defer to the Commission’s determination that the rule imposes no common carrier obligations on mobile-internet providers," the judges wrote. The court also said the rules were authorized by the FCC's authority to regulate the use of spectrum.

The advocacy group Public Knowledge, which supported the data-roaming rules, praised the decision as pro-consumer. Senior staff attorney John Bergmayer added that the ruling shows that courts are "casting a more skeptical eye" on telecoms' challenges to the FCC.

The decision obviously is good news for people who want to access the mobile Web while they're traveling. Whether it has broader significance is yet to be determined.

Neutrality proponents clearly hope that the decision bodes poorly for Verizon in its challenge to the open Internet rules. But that might not actually be the case.

The FCC's neutrality rules prohibit all broadband providers -- wireline as well as wireless -- from blocking sites or competing applications. The regulations also prohibit wireline providers from engaging in unreasonable discrimination.

Verizon, which is fighting those rules in court, raises some of the same arguments against neutrality regulations as it did against data-roaming rules. Specifically, Verizon says that the neutrality rules mark an unlawful attempt to impose common carrier regulations on it.

Now that the court has rejected that position, Verizon could have a hard time persuading judges of it. But that's not Verizon's only argument. The telecom also says the FCC lacks authority to regulate broadband, which is classified as an "information" service.

Many observers think that Verizon has a good chance of winning on that point, especially because the court already ruled -- in a case involving Comcast -- that the FCC lacks authority to regulate information services. In that matter, the appeals court vacated an order sanctioning Comcast for violating the 2005 neutrality principles by throttling peer-to-peer traffic.