BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C ) ) ) )

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1 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C In the Matter of Protecting and Promoting the Open Internet GN Docket No PETITION FOR RECONSIDERATION OF NTCH, INC., FLAT WIRELESS, LLC AND BUFFALO-LAKE ERIE WIRELESS SYSTEMS CO., LLC NTCH, Inc. (NTCH, Flat Wireless, LLC (Flat and Buffalo-Lake Erie Wireless Systems Co., LLC (Blue Wireless (collectively, Petitioners by their attorneys hereby petition the Commission pursuant to Section 405 of the Act and of the Commission s rules to reconsider its February 26, 2015 Report and Order on Remand, Declaratory Ruling, and Order, FCC 15-24, rel. March 12, 2015 ( Net Neutrality Order in the above-captioned proceeding in two limited respects. Petitioners are users and potential users of data roaming services and are therefore aggrieved parties whose interests are adversely affected by the Commission s decision. As will be detailed below, Petitioners seek reversal of the Commission s decision to forbear from application of Section 201 and 202 of the Act to data roaming services. Forbearance from those sections of the Act is both directly contrary to the express provisions of Section 332(c of the Act and unsupported by the specific factual predicates required by that Section. Background. Initially, Petitioners want to recognize the monumental effort involved in gathering and evaluating the vast body of evidence in the record regarding a fundamental structural component of the American economy. This was a Herculean task, with vast ramifications for the shape of the internet and wireless communications. And in general, Petitioners strongly support the Commission s decision to declare Broadband Internet Access a { }

2 telecommunications service subject to Title II. The Commission s efforts to avoid that declaration over the last decade have been increasingly shaky as the need to ensure competitive parity between functionally similar services and the need to impose basic consumer and competitive protections have driven a concomitant need to find a solid regulatory footing for the necessary regulations. We therefore applaud the Net Neutrality Order for its bold and straightforward re-shaping of the regulatory paradigm in a way that we believe will better meet the needs of the 21 st Century. But in an Order that is 400 single-spaced pages long, there are bound to be glitches, and the Commission s disposition of data roaming unfortunately falls into that category. Briefly, at Paragraphs 388 et seq. of the Order, the Commission formally declared mobile broadband internet access service to be both a Title II telecommunications service and Commercial Mobile Radio Service. The Commission plainly recognized at paragraph 422 of the Order that Section 332(c of the Act bars the Commission from forbearing from Section 201, 202 and 208 of the Act in connection with CMR services. Specifically, Section 332(c states that the Commission shall treat CMRS providers as common carriers for purposes of the Act, except that the Commission may specify by regulation provisions of Title II which will not apply. In prescribing or amending any such regulation, the Commission may not specify any provision of section 201, 202 or 208 At Paragraphs of the Net Neutrality Order, the Commission considered how to handle data roaming. First, the Commission forbore under Section 10 of the Act rather than Section 332(c. While Section 10 and 332(c are similar, they are not identical. As noted above, unlike Section 332(c, Section 10 does permit forbearance from Section 201 and 202. Second, the Commission decided to continue to apply the roaming obligations that applied prior to the reclassification of CMRS and mobile data roaming as CMRS. It therefore forbore from Title II regulation of data roaming in the absence of significant comment in the instant record regarding the specific roaming requirements that should apply to MBIAS after reclassification. Net Neutrality Order at Para In other words, the Commission forbore based on the absence of a record rather than the presence of supporting facts. Finally, the Commission left in place the pre-existing data roaming obligations which are set forth in Section 20.12(e of the rules. That section of the rules was expressly tailored not to impose Title II regulation on data roaming. { }2

3 Hence, as explained in the Data Roaming Order 1 and the later T-Mobile Declaratory Ruling Order, 2 the current rules do not require service providers to offer either just and reasonable rates or not unjustly or unreasonably discriminatory rates, as Sections 201 and 202 of the Act would require. While it is not clear whether the Commission s errors in the above regards were deliberate or inadvertent, it is clear that data roaming is too important an element of the mobile broadband internet access ecosystem to be unlawfully relegated to a tortured and tentative regulatory status not contemplated by the Act. I. Section 332(c Rather Than Section 10(a of the Act Applies to Data Roaming Having declared mobile broadband internet access a Commercial Mobile Service, this service now falls under the aegis of Section 332(c of the Act. This section and Section 10 of the Act set forth the terms, criteria and limitations on forbearing from Title II of the Act. The two sections generally track each other in terms of how forbearance from Title II is to be applied, but with a key difference. Section 10 authorizes forbearance from all of the provisos of Title II upon a proper showing, whereas, as we saw above, Section 332(c expressly excepts Sections 201, 202 and 208 from its reach. 3 Although Section 10 of the Act could, by its terms, be applied to any telecommunications service or carrier, we must assume that Congress intended the stricter and more limited range of Section 332(c to remain in place. Section 332(c, after all, was enacted in 1993, three years before Section 10 was enacted, so it would have made no sense for Congress to leave the specific forbearance provisions applicable to CMR services in place if it intended them to be superseded by Section 10. It is a fundamental canon of statutory construction that, when there is an apparent conflict between a specific provision and a more general one, the more specific one governs." Shawnee Tribe v. United States, 423 F.3d 1204, 1213 (10th Cir.2005, quoting United States v. Groves, 369 F.3d 1178, 1188 n. 5 (10th Cir See also, ConArt, Inc. v. Hellmuth, Obata + Kassabaum, Inc., 504 F.3d 1208, 1210 (11th Cir.2007 ("[W]hen presented with a potential overlap between the broadly sweeping terms of a statute of general application that appear to apply to an entire class, and the narrow but specific terms of a statute that apply to only a subgroup of 1 Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, WT Docket No , Second Report and Order, 26 FCC Rcd 5411, (2011 ( Data Roaming Order, aff d sub nom. Cellco Partnership v. FCC, 700 F.3d 534 (D.C. Cir Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, DA , rel. Dec. 18, 2014 (T Mobile Declaratory Ruling 3 Section 10 also provides that forbearance can occur if the conditions set forth there apply, while Section 332(c says the Commission can forbear only if the conditions are present, arguably a somewhat stricter standard. { }3

4 that class, we avoid conflict between the two by reading the specific as an exception to the general."; Tug Allie-B, Inc. v. United States, 273 F.3d 936, 949 (11th Cir Yet the Commission expressly relied on Section 10 to forbear from Title II s application to data roaming. This error may have led the Commission, as we will see below, to forbear from Sections 201 and 202 without the statutory authority to do so. II. The Commission Unlawfully Forbore from Enforcement of Sections 201 and 202 The FCC s action with respect to data roaming was to forbear from the application of the CMRS roaming rule, section 20.12(d, to MBIAS providers, conditioned on such providers continuing to be subject to the obligations, processes, and remedies under the data roaming rule codified in section 20.12(e. Net Neutrality Order at Para While that is an odd formulation of a forbearance decision, the end result is that CMRS providers (i are subject to the commercially reasonable standard that applies to data roaming rates and (ii have no obligation not to discriminate in their terms and conditions, reasonably or otherwise. In its 2011 Data Roaming Order, the Commission consciously and deliberately limited its regulation of data roaming in these respects in order to ensure that its action was not somehow deemed to be a Title II-type regulation of this service. In reviewing the Commission s action, the D.C. Circuit agreed. Cellco Partnership v. FCC, 700 F.3d 534 (D.C. Cir Because the current data roaming regulations set forth in Section 20.12(e of the rules are not intended to, and do not, require rates to be just and reasonable (as required by Section 201 of the Act or not unjustly or unreasonably discriminatory (as required by Section 202 of the Act, the Commission has plainly forborne from those two sections of the Act. Yet as we saw above, Section 332(c does not authorize the Commission to forbear from those sections. The Commission s action is therefore unlawful on its face and should be reversed. III. The Commission Did Not Meet the Burden Established by Congress for Forbearance Even if the Commission had been authorized to forbear from Sections 201 and 202 upon a proper finding of facts, there can be no question that its fact finding here did not support the action taken. Let s first take a moment to examine the statutory framework. Under ordinary circumstances, the United States Code is the law of the land and both the Commission and everyone else are required to obey it. Congress gave the Commission the authority in Section { }4

5 332(c to make certain provisions of Title II inapplicable to certain services. The FCC can only exercise that authority, however, if it first makes the three findings prescribed by the Act: (i the enforcement of such provision is not necessary in order to ensure that the charges, practices, classifications and regulations for or in connection with that service are just and reasonable and are not unjustly or unreasonably discriminatory; (ii enforcement of such provision is not necessary for the protection of consumers; and (iii specifying such provision is consistent with the public interest. The Commission is also directed to consider in its public interest evaluation whether forbearance from the provision at issue will enhance competition among CMRS providers. The Commission must affirmatively make these three factual determinations before it can forbear. In other words, forbearance only occurs upon a determination that all three of these factual circumstances prevail and it is therefore safe and prudent not to enforce the statute. But here the FCC made no findings at all that the three requirements had been met. Rather, it acknowledged that there was an absence of significant comment in the record in the proceeding about what effect forbearance would have on roaming and what specific roaming requirements should apply. The Commission thereupon threw up its hands and declared that in the absence of a record, it would forbear from all Title II provisions applicable to data roaming but would retain the non-title II regulatory scheme which had been adopted in Net Neutrality Order at para This stands the forbearance process precisely on its head. A lack of a record is not a basis for forbearing. In the absence of facts specifically supporting the findings required by Section 332(c, the Commission may not proceed to forbear; rather, it is obligated to enforce the law as Congress enacted it. Since there was no record here on which a forbearance finding could have been grounded, the forbearance action was plainly unlawful. The promise to open a new Docket to consider data roaming under the new Title II regime is fine, but it cannot make up for the original lack of a record on which to base an important forbearance action. We must also note that to the extent the T-Mobile Declaratory Ruling proceeding (WT Docket created a record regarding the need for reasonable data roaming, that proceeding { }5

6 demonstrated very strongly that there are currently serious issues with the justness, reasonableness and non-discriminatoriness of data roaming rates, that consumers are being adversely affected by astronomical data roaming rates, and that not only is forbearance not warranted, but stronger enforcement of Title II is needed to protect the public interest. IV. Conclusion For the reasons set forth above, the Commission should promptly reconsider and reverse its decision to forbear from all Title II regulation of data roaming and, rather, make clear that Sections 201 and 202 of the Act apply to the provisions of data roaming by CMRS providers. Given the critical state of data roaming rates in this country and the dire impact of unreasonable rates on roaming partners, and given the clear failure to meet the requirements of the Act necessary to forbear, Petitioners request that the Commission act immediately to correct its error. Respectfully submitted, NTCH, INC. FLAT WIRELESS, LLC BUFFALO-LAKE ERIE WIRELESS SYSTEMS CO, LLC By: /s/ Donald J. Evans Their Attorney FLETCHER, HEALD & HILDRETH, PLC 1300 North 17 th Street 11 th Floor Arlington, Virginia Phone: ( May 13, 2015 { }6