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Federal Communications Commission DA 16-396

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

Worldcall Interconnect, Inc.
a/k/a Evolve Broadband,
Complainant

AT&T Mobility LLC,
Defendant
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Proceeding No. 14-221
File No. EB-14-MD-011

ORDER

Adopted: April 14, 2016 Released: April 14, 2016
By the Chief, Market Disputes Resolution Division, Enforcement Bureau:
I. INTRODUCTION
1. In this interim Order, we deny portions of a formal complaint that Worldcall Interconnect,
Inc. (WCX) filed against AT&T Mobility LLC (AT&T) alleging a violation of the Commission’s
roaming rules and orders. As explained below, we address the merits of two key issues in dispute
including (a) the scope of AT&T’s obligation to offer data roaming; and (b) proposed rates for data
roaming. Namely, we find that AT&T is not obligated to offer data roaming to WCX in all of the areas
that WCX has requested and that WCX has not demonstrated that AT&T’s proposed rates are
commercially unreasonable. We direct the parties to resume good faith negotiations of a roaming
agreement that is consistent with the guidance provided herein, and to submit to the Enforcement Bureau
(“Bureau”) staff assigned to this matter a report on the progress of their negotiations within 60 days of the
release of this Order.

II. BACKGROUND
A. Legal Framework
2. Roaming arrangements between wireless service providers enable customers of one provider
to receive services from another provider’s network when traveling outside of their own provider’s
network coverage area. The Commission has determined that the availability of wireless roaming
arrangements is critical to promoting seamless consumer access to mobile services nationwide, to
promoting innovation and investment, and to promoting facilities-based competition among multiple

Federal Communications Commission DA 16-396

2
service providers.1 It also has determined that data roaming would “encourage service providers to invest
in and upgrade their networks and to deploy advanced mobile services ubiquitously, including in rural
areas.”2 Further, the Commission has noted that consolidation in the mobile wireless marketplace may
have reduced the incentives of the largest providers to enter into agreements with other providers because
of their reduced need for reciprocal roaming.3

3. Accordingly, the Commission has established requirements to ensure the availability of
roaming agreements in the mobile wireless marketplace.4 Under the Commission’s rules, two different
regimes govern the roaming obligations of commercial mobile radio service (CMRS) providers. The first
regime, established in 2007 under Sections 201 and 202 of the Act, imposes “automatic roaming”
obligations on CMRS providers that “offer real-time, two-way switched voice or data service that is
interconnected with the public switched network and utilizes an in-network switching facility.”5 Such
providers are required, on reasonable request, to provide roaming on reasonable and not unreasonably
discriminatory terms and conditions.6
4. The Commission adopted a second roaming regime in 2011 applicable to “commercial
mobile data services,” which were defined to include all commercial mobile services that were not
interconnected with the public switched network.7 In the Data Roaming Order, adopted pursuant to Title
III of the Communications Act,8 the Commission sought to promote consumer access to nationwide
mobile broadband service by requiring facilities-based providers of commercial mobile data services to
offer roaming arrangements to other such providers on commercially reasonable terms and conditions,
subject to certain limitations.9 The Commission stated that it would determine the “commercial
reasonableness” of offered roaming terms “based on the totality of the circumstances,” and provided a
non-exhaustive list of factors that it could consider in resolving data roaming disputes.10 The
Commission noted that the commercial reasonableness of particular roaming terms would “depend on

1 See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers
of Mobile Data Services, WT Docket No. 05-265, Second Report and Order, 26 FCC Rcd 5411, para. 1 (2011)
(Data Roaming Order); Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and
Other Providers of Mobile Data Services, WT Docket No. 05-265, Order on Reconsideration and Second Further
Notice of Proposed Rulemaking, 25 FCC Rcd 4181, 4182, para. 2 (2010) (“Voice Roaming Order on
Reconsideration”).
2 Data Roaming Order, 26 FCC Rcd at 5443, para. 64.
3 Data Roaming Order, 26 FCC Rcd at 5426-27, para. 27.
4 See Data Roaming Order, 26 FCC Rcd at 5412-14, paras. 3-7 (summarizing the history of the Commission’s
roaming rules and orders).
5 47 CFR § 20.12(a)(2), (d).
6 Id., § 20.12(d).
7 Data Roaming Order, 26 FCC Rcd at 5411-12, paras. 1-2.
8 47 U.S.C. § 303(b), (r).
9 See Data Roaming Order, 26 FCC Rcd at 5411, 5432-33, paras. 1, 42-43; see also 47 CFR § 20.12(e) (data
roaming rule).
10 Data Roaming Order, 26 FCC Rcd at 5415, para. 8; id. at 5452-53, para. 86 (listing factors).

Federal Communications Commission DA 16-396

3
numerous individualized factors,” and that under the commercial reasonableness standard, providers may
“negotiate different terms and conditions on an individualized basis, including prices, with different
parties.”11
5. In the Data Roaming Order, the Commission set forth procedures for resolving disputes
regarding compliance with the Commission’s data roaming rule.12 The Commission held that parties may
file a formal or informal complaint under Section 20.12(e)(2) of the Commission’s rules13 and delegated
authority to the Bureau to adjudicate such complaints.14 The Commission also delegated to the Bureau
the authority to take specific steps to resolve particular disputes including, among others, requiring the
parties to provide to the Commission the best and final offer that each presented during their negotiations
and, where appropriate, ordering the parties to resume negotiations.15 The Commission indicated that the
Bureau’s determination of the appropriate steps to take in resolving a particular dispute would depend in
part on its assessment of the actions of both parties.16

6. In 2014, the Wireless Telecommunications Bureau (WTB) issued a Declaratory Ruling that
provided further guidance to parties on the “commercial reasonableness” of proffered data roaming
rates.17 In that ruling, WTB clarified that the data roaming rule permits a complainant “to adduce
evidence” in a particular roaming case as to whether roaming rates in a host provider’s offer “are
substantially in excess of retail rates, international rates, and MVNO/resale rates” and to submit “a
comparison of proffered roaming rates to domestic roaming rates as charged by other providers.”18 WTB

11 Data Roaming Order, 26 FCC Rcd at 5445-46, para. 68. In the recent Open Internet Order, the Commission
reclassified mobile broadband internet access services (MBIAS) as commercial mobile radio services. In doing so,
it forbore from applying the automatic roaming rule in Section 20.12(d) to MBIAS providers, “conditioned on such
providers continuing to be subject to the obligations, process, and remedies under the data roaming rule codified in
section 20.12(e).” See Protecting and Promoting the Open Internet, GN Docket No. 14-28, Report and Order on
Remand, Declaratory Ruling, and Order, 30 FCC Rcd 5601, 5857-58, para. 526 (2015) (Open Internet Order).
12 Data Roaming Order, 26 FCC Rcd at 5447-52, paras. 71-84.
13 Data Roaming Order, 26 FCC Rcd at 5448-49, 5451, paras. 74-76, 82; 47 CFR § 20.12(e)(2). The Commission
also held that, depending on the circumstances of each case, it may be appropriate to address a dispute regarding
compliance with the data roaming rules by filing a petition for declaratory ruling under Section 1.2 of the
Commission's rules, and noted that the Wireless Telecommunications Bureau has delegated authority to resolve such
disputes. See, e.g., Data Roaming Order, 26 FCC Rcd at 5451, paras. 81-82.
14 Id., 26 FCC Rcd at 5451, para. 82 (“We further clarify that the Enforcement Bureau has delegated authority to
resolve complaints arising out of the data roaming rule.”) & n.238 (“We add appropriate clarifying language to this
effect to the rule governing the functions of the Enforcement Bureau.”) (citing modifications to 47 CFR §
0.111(a)(11)).
15 Data Roaming Order, 26 FCC Rcd at 5450, para. 79.
16 Id.
17 Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of
Mobile Data Services, WT Docket No. 05-265, Declaratory Ruling, 29 FCC Rcd 15483, at *4, para. 9 (WTB 2014)
(Declaratory Ruling). AT&T Services, Inc. and Verizon each filed an application for review of the Declaratory
Ruling. See Application for Review of AT&T, WT Docket No. 05-265 (filed Jan. 16, 2015) (pending); Verizon
Application for Review, WT Docket No. 05-265 (filed Jan. 20, 2015) (pending).
18 Declaratory Ruling, 29 FCC Rcd 15483, at *4, para. 9.

Federal Communications Commission DA 16-396

4
further stated that “the probative value of these other rates as reference points will depend on the facts and
circumstances of any particular case,” including the list of factors identified in the Data Roaming Order.19

B. History of the Parties’ Dispute
7. WCX holds a lower B Block 700 MHz license to provide wireless services in Cellular Market
Area (CMA) 667.20 CMA 667 encompasses a predominantly rural area in central Texas that is adjacent
to CMAs covering Austin, Houston, and San Antonio.21 WCX states that it offers wireless broadband
internet access service within CMA 667 using Long Term Evolution (LTE) technology.22
8. AT&T holds multiple radio station authorizations, including in CMAs adjacent to WCX’s
licensed area. Relevant to this complaint, AT&T holds licenses for, and states that it offers LTE services
in areas adjoining, CMA 667, including in Austin, Houston, and San Antonio, Texas.23
9. On November 6, 2014, WCX filed the instant Complaint.24 WCX alleged that, in pre-
Complaint negotiations, AT&T improperly refused to enter into a data roaming agreement proposed by
WCX and instead proposed data roaming terms that violate the Commission’s roaming rules and orders.25
WCX asked the Commission to find that AT&T’s proposed terms are not commercially reasonable under
the Data Roaming Order and Section 20.12(e) of the Commission’s rules and requested entry of an order
directing AT&T to provide data roaming services to WCX pursuant to the terms of a proposed agreement

19 Id.
20 Joint Statement of Stipulated Facts, Disputed Facts and Key Legal Issues, EB-14-MD-011, at 1, para. 3 (filed Dec.
11, 2014) (Jt. Statement).
21 Jt. Statement at 1, paras. 3-4. WCX’s licensed area contains 11,000 square miles, has a population of fewer than
400,000 people, and covers all or part of the following counties: Austin, Bastrop, Burleson, Caldwell, Colorado,
Fayette, Gonzales, Jackson, Lavaca, Lee, Matagorda, Washington, and Wharton. Id. at 1, para. 4.
22 Jt. Statement at 1, para. 5. LTE refers to a high performance air interface for cellular mobile communications
systems, increasing the capacity and speed of wireless networks relative to 3G deployments. See, e.g., Connect
America Fund, WC Docket No. 10-90, Notice of Inquiry and Notice of Proposed Rulemaking, 25 FCC Rcd 6657,
6861 (2010) (OBI Tech. Paper No. 1, “The Broadband Availability Gap”). WCX contends that it “has already met
the FCC build-out requirements” for CMA 667. See Declaration of Lowell Feldman at 5 (Oct. 1, 2014) (Feldman
Decl.).
23 Jt. Statement at 3, para. 14.
24 Second Amended Complaint, EB-14-MD-011 (Nov. 6, 2014) (Compl. or Complaint). WCX filed its original
complaint on September 8, 2014, and an amended complaint on October 1, 2014, which it further amended and filed
as the instant Complaint on November 6, 2014. On November 5, 2014, AT&T filed its answer to the October 1st
version of the complaint and, in doing so, anticipated certain amendments that WCX had agreed to incorporate into
the Complaint that is now before us. See Answering Submission of AT&T Mobility LLC, EB-14-MD-011 at 1 n.1
(Nov. 5, 2014) (Answering Submission) & Tab 1, Answer to Amended Complaint (Answer). On November 21,
2014, WCX filed its reply. See Worldcall Interconnect, Inc. Reply to AT&T Mobility Answer Package, EB-14-MD-
011 (Nov. 21, 2014) (Reply).
25 Compl. at 9, 15-17, paras. 17, 29-33.

Federal Communications Commission DA 16-396

8
roaming to an entity that does not provide facilities-based service to its customers.42

16. We find no credible evidence that WCX is a facilities-based provider outside CMA 667,
where WCX holds a 700 MHz license. Although WCX claims that it offers facilities-based service “to
end users throughout the country using other types of wireless spectrum,”43 WCX has not shown what
facilities-based services it allegedly offers outside CMA 667, or identified any facilities outside CMA 667
through which it offers service.44 To the extent WCX seeks to use AT&T’s network as the primary
network for new WCX customers residing in areas outside CMA 667 where WCX lacks network
facilities, WCX requests a resale agreement, not roaming.45 The Commission’s mandatory resale rule,
which when applicable applied only to automatic roaming, expired in 2002.46

17. Further, we find no merit in WCX’s objection that AT&T’s roaming offer does not cover
WCX customers residing in places where WCX “obtains connectivity through contracted third party
access.” To the extent WCX seeks to serve customers through third party connectivity rather than its own
facilities, it is not a facilities-based provider under Section 20.12.47 For all of these reasons, we find that
WCX’s request to access AT&T’s network in order to acquire customers who reside outside WCX’s

CFR § 20.12(d) (“ it shall be the duty of each host carrier . . . to provide automatic roaming to any technologically
compatible, facilities-based CMRS carrier on reasonable and not unreasonably discriminatory terms and conditions .
. . .”) (emphasis added).
42 WCX is a facilities-based provider of service to its customers who reside within CMA 667 – the service area
licensed to it, in which it has constructed operational facilities – and not to any customers it may have who live
outside this service area, where WCX has no facilities of its own. In light of the Commission’s distinction between
roaming and resale described below, we interpret the Commission’s use of the term “roaming” as not applicable to
customers acquired while residing outside the provider’s “local or regional service areas.” Data Roaming Order, 26
FCC Rcd at 5419, 5420, paras. 15, 17.
43 WCX Reply Br. at 5 & n.23 (complaining that the terms of AT&T’s Final Offer “deny AT&T roaming to WCX
customers that reside anywhere other than WCX’s fully-licensed 700 MHz CMA” and asserting that “WCX offers
facilities-based CMRS service to end users throughout the country using other types of wireless spectrum”).
44 Although WCX has suggested that it “will build network” outside CMA 667 in order to provide facilities-based
service, WCX has not offered evidence that it has actually done so or sufficient evidence that it will do so in the
future. See WCX Br. at 17.
45 See, e.g., Annual Report and Analysis of Competitive Market Conditions with Respect to Mobile Wireless,
Including Commercial Mobile Service, WT Docket No. 15-125, Eighteenth Report, DA 15-1487, at 24 n.73 (Dec.
2015) (“In contrast to the purchase of capacity wholesale to provide resale or MVNO services, a provider uses
roaming services to market extended coverage to consumers residing within the provider’s network coverage area,
but not to acquire customers where a service provider does not have network coverage.”). See also Data Roaming
Order, 26 FCC Rcd at 5431, para. 38 n.116 (internal citation omitted) (noting that, in proposing a data roaming
requirement, the Commission did not intend for such requirement “to constitute a resale requirement” and indicated
that the Commission would decide in the context of a “specific dispute whether data roaming should be provided in
a particular instance, and on what terms, or whether the request is essentially a request for resale”).
46 47 CFR § 20.12(b)(3).
47 While we analyze the scope of AT&T’s roaming obligation under Section 20.12(e) of the Commission’s rules, our
conclusions in this regard would be the same under Section 20.12(d). As WCX has observed, “the question whether
WCX is seeking ‘resale’ rather than ‘roaming’ applies regardless of whether § 20.12(d) applies or § 20.12(e) applies
to any given service.” WCX Reply at 40 n.65; id. at 35 n.54.

Federal Communications Commission DA 16-396

15
specific prescriptive regulation of rates.”81 Accordingly, we reject WCX’s suggestion that AT&T is
required to justify the commercial reasonableness of its proposed data roaming rates based on cost data.

28. Based on the foregoing, we find that WCX has not demonstrated that AT&T’s proposed data
roaming rates are commercially unreasonable.

C. Remaining Issues
29. In this interim Order, we have addressed the merits of two key issues in dispute – namely, the
scope of AT&T’s obligation to offer data roaming and the proposed data roaming rates. Because the
guidance we have provided here regarding these key issues may alter the parties’ negotiating positions
with respect to one or more of the remaining issues in dispute, we find that the parties should renew their
negotiations with the goal of achieving a negotiated resolution of the remaining issues.82 Accordingly, we
direct the parties to resume good faith negotiations of a roaming agreement that is consistent with the
guidance provided in this Order and to submit to the Bureau staff assigned to this matter a report on the
progress of their negotiations within 60 days of the release of this Order. If the parties have not reached
an agreement by that date, the report should indicate whether both parties wish to continue their
negotiations. The Bureau’s staff are also available to assist the parties in resolving their dispute through
mediation.

30. Finally, if one or more of the issues raised in this proceeding remain unresolved at the end of
the 60-day negotiation period, and either party wishes to discontinue the negotiations as of that date,
WCX may request a further ruling addressing the unresolved issue(s) based on the present record. In that
event, we will then issue a final order that incorporates the rulings set forth in this interim Order and
provides rulings on any remaining unresolved issues.

81 AT&T Br. at 21 (citing Data Roaming Order, 26 FCC Rcd at 5423, para. 21).
82 For example, although the parties previously were unable to agree on terms limiting WCX’s use of AT&T’s
network for data roaming, and on the enforcement provisions that govern if these limitations are breached, the
guidance we provide here regarding the scope of AT&T’s roaming obligation and the commercial reasonableness of
the proposed roaming rates may cause the parties to re-evaluate their views on what usage or enforcement provisions
are necessary or appropriate.

Federal Communications Commission DA 16-396

IV. ORDERING CLAUSE
31. Accordingly, IT IS ORDERED that, pursuant to the authority contained in Sections 4(i), 4(j),
208, 301, 303, 304, 309, 316, and 332 of the Communications Act, 47 U.S.C. §§ 154(i), 154(j), 208, 301,
303, 304, 309, 316, and 332, and Sections 0.111(a)(11), 0.311, 1.720-1.735, and 20.12 of the
Commission’s rules, 47 CFR §§ 0.111(a)(11), 0.311, 1.720-1.735, and 20.12, the Complaint is DENIED
to the extent set forth in this Order.

FEDERAL COMMUNICATIONS COMMISSION

Christopher Killion
Chief, Market Disputes Resolution Division
Enforcement Bureau