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

In the Matter of )
)
FLAT WIRELESS, LLC, ) Proceeding Number 15-147
Complainant ) Bureau ID Number EB-15-MD-005
)
v. )
)
CELLCO PARTNERSHIP d/b/a )
VERIZON WIRELESS, )
Defendant

ORDER

Adopted: August 2, 2018 Released: August 3, 2018

By the Commission:

I. INTRODUCTION
1. In this proceeding, Flat Wireless, LLC (Flat) filed a formal complaint alleging that
Verizon violated the Commission s voice and data roaming rules by offering roaming rates which
Verizon charges when Flat wireless customers travel outside Flat s coverage area and roam onto
Verizon s network that are unjust and unreasonable, unreasonably discriminatory, and commercially
unreasonable. For the reasons discussed below, we deny Flat s complaint.
II. BACKGROUND
2. Complainant Flat is a mobile wireless service provider that holds a number of spectrum
licenses.1 Using a Code Division Multiple Access (CDMA) based network, Flat provides facilities-based
wireless voice and data service to retail customers in parts of western Texas and the southwestern United
States.2 Defendant Cellco Partnership d/b/a Verizon Wireless (Verizon) has a nationwide, CDMA-based
network and provides mobile wireless voice and data service.3
A. Legal Framework
3. No single wireless carrier has licensed spectrum and network facilities covering the entire
United States. Consequently, when any carrier s wireless voice or data customers travel beyond that

1 See Complaint, Proceeding Number 15-147, Bureau ID Number EB-15-MD-005 (filed June 12, 2015) at 21, para.
44; Response to Interrogatories of Flat Wireless, Proceeding Number 15-147, Bureau ID Number EB-15-MD-005
(Oct. 19, 2015) (Flat Interrogatory Responses) at 2; Initial Brief of Flat Wireless, Inc., Proceeding Number 15-147,
Bureau ID Number EB-15-MD-005 (filed Sept. 30, 2016) (Flat Initial Br.) at 1.
2 Complaint at 6, para. 14; Complaint, Ex. A.2 at 1; Flat Interrogatory Responses at 2; Flat Initial Br. at 1, 12, 25.
3 Verizon Wireless, Better Matters, http://www.verizonwireless.com/landingpages/better-matters/ (last visited Apr.
21, 2016).

Federal Communications Commission FCC 18-117

carrier s geographic coverage area, those customers must roam on another carrier s network to maintain
access to wireless services.4
4. The Commission has issued a series of orders addressing wireless carriers obligation to
provide voice and data roaming services, along with the steps an aggrieved party seeking a roaming
agreement may pursue.5 In 2007, the Commission determined that voice roaming is a common carrier
service that must be provided on a just, reasonable, and non-discriminatory basis pursuant to Sections
201 and 202 of the Communications Act. 6 The Commission declined to set voice roaming rates and
rejected price caps or other forms of rate regulation.7 Instead, the Commission relied on negotiations
between the carriers based on competitive market forces to establish the rates.8 In 2010, the
Commission provided further guidance, including a list of factors that may be considered in resolving a
voice roaming dispute.9 The Commission acknowledged that its chosen approach might result in a
relatively high price of [voice] roaming compared to providing facilities-based service 10 and anticipated
that rates resulting from individualized negotiation would reasonably vary. 11 The Commission
reasoned that regulation to reduce [voice] roaming rates has the potential to deter investment in network
deployment by impairing buildout incentives facing both small and large carriers. 12 The Commission
concluded that the better course . . . is that the rates individual carriers pay for [voice] roaming services
be determined in the marketplace through negotiations between the carriers, subject to the statutory
requirement that any rates charged be reasonable and non-discriminatory. 13
5. In 2011, the Commission addressed data roaming, which enables customers to maintain
wireless Internet connectivity when outside their carriers service areas.14 Pursuant to its authority under
Title III of the Communications Act, the Commission required carriers to offer data roaming on
commercially reasonable terms where technologically feasible.15 Similar to the Voice Roaming Orders,

4 See Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including
Commercial Mobile Services, DA 16-1061 (Sept. 23, 2016) (Competition Report) at 74, para. 102.
5 See In the Matter of Reexamination of Roaming Obligations of Commercial Mobile Radio Serv. Providers & Other
Providers of Mobile Data Servs., Second Report and Order, 26 FCC Rcd 5411 (2011) (Data Roaming Order); In the
Matter of Reexamination of Roaming Obligations of Commercial Mobile Radio Serv. Providers & Other Providers
of Mobile Data Servs., Order on Reconsideration and Second Further Notice of Proposed Rulemaking, 25 FCC Rcd
4181 (2010) (2010 Voice Order); In the Matter of Reexamination of Roaming Obligations of Commercial Mobile
Radio Serv. Providers, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 15817 (2007)
(2007 Voice Order). We refer to the 2007 Voice Order and 2010 Voice Order, collectively, as the Voice Roaming
Orders.
6 2007 Voice Order, 22 FCC Rcd at 15817, para. 1.
7 See id. at 15832-33, paras. 37-40.
8 Id. at 15824, para. 18.
9 See 2010 Voice Order, 25 FCC Rcd at4200-01, para. 39
10 2010 Voice Order, 25 FCC Rcd at 4197-98, para. 32.
11 2007 Voice Order, 22 FCC Rcd at 15834, para. 44 ( Because the need for automatic roaming services may not
always be the same, and the value of roaming services may vary across different geographic markets due to
differences in population and other factors affecting the supply and demand for roaming services, it is likely that
automatic roaming rates will reasonably vary. ). See also 2010 Voice Order, 25 FCC Rcd at 4181, para. 32.
12 2007 Voice Order, 22 FCC Rcd at 15833, para 40.
13 Id. at 15832, para. 37.
14 See Data Roaming Order, 26 FCC Rcd at 5411. The D.C. Circuit upheld the Data Roaming Order in 2012. See
Cellco P ship v. FCC, 700 F.3d 534, 548 (D.C. Cir. 2012) (Cellco v. FCC).
15 See Data Roaming Order, 26 FCC Rcd at 5411, para. 1. The Commission in the Data Roaming Order did not
exercise Title II authority. In the Open Internet Order, the Commission reclassifying mobile broadband internet

Federal Communications Commission FCC 18-117

Commission observed that, while providers were not required to hold themselves out to serve all comers
indiscriminately on the same or standardized terms, [c]onduct that unreasonably restrains trade . . . is not
commercially reasonable. 67 But Flat has failed to support its claim that Verizon has leveraged monopoly
power in the roaming market to eliminate competition in local markets.68 Indeed, Flat has neither
demonstrated that Verizon exercises market power nor that Flat has maximized its competitive effort in
its own home territory.69 Similarly, Flat has failed to support its claim that Verizon engages in predatory
pricing by proxy, relying inadequately on the naked fact that Verizon charges
.70 Further, nowhere does Flat plausibly establish a claim
of competitive harm. Flat has neither identified a specific market in which Verizon is its only available
roaming partner,71 nor has it adduced any evidence that Verizon has discriminated on price in order to
gain or solidify its alleged market dominance or with the intent of undercutting its competitors.72
C. Comparisons to Verizon s Costs, Retail Rates, or MVNO Rates
15. As discussed above, Verizon s offered voice and data roaming rates fall within the range
of rates that Verizon offers others and itself pays today. Nevertheless, Flat argues that Verizon s offered
rates violate the Commission s rules because they exceed Verizon s costs, retail rates, and MVNO rates.
In making this argument, Flat relies upon the Wireless Telecommunications Bureau s (WTB) December
2014 declaratory ruling that retail, international, and MVNO/wholesale rates could be relevant to the
reasonableness of data roaming rates, depending on the facts and circumstances of any particular case. 73
16. Flat first asks us to impose cost-based rate regulation, but the Commission has expressly
declined to do so.74 Indeed, the Commission is not required to establish cost-based rates even under Title
II or to provide that the reasonableness of rates will be determined by reference to a carrier s costs.75 In
the Voice Roaming Orders, the Commission expressly declined to impose price caps or any other form of

67 Data Roaming Order, 26 FCC Rcd at 5433, para. 45.
68 See Flat Reply Br. at 3-4.
69 See Flat Initial Br. at 25-26.
70 See Flat Initial Br. at 32-33.
71 See id. at 32. Further, while Flat points to particular coverage issues it faces in Texas, evidence cited by Flat
shows that Verizon also has a substantial coverage gap in that state. Complaint at 5-6, para. 14; id., Ex. B-C.
72 See Flat Initial Br. at 10.
73 See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers
of Mobile Data Services, 29 FCC Rcd 15483, 15486, para. 9 (WTB 2014) (T-Mobile Declaratory Ruling). We note
that two applications for review of this ruling are pending. See In the Matter of Reexamination of Roaming
Obligations of Commercial Mobile Radio Serv. Providers & Other Providers of Mobile Data Servs., WT Docket
No. 05-265, Application for Review of AT&T, (Jan. 16, 2015); In the Matter of Reexamination of Roaming
Obligations of Commercial Mobile Radio Serv. Providers & Other Providers of Mobile Data Servs., WT Docket
No. 05-265, Verizon Application for Review (Jan. 20, 2015).
74 See Flat Initial Br. at 8-10, 15, paras. 19, 22-23, 30; Cellco P ship v. FCC, 700 F.3d at 548; 2007 Voice Order, 22
FCC Rcd at 15832-33, para. 37; Data Roaming Order, 26 FCC Rcd at 5422-23, 5444-46, paras. 21, 68.
75 See Competitive Telecomms. Ass n v. FCC, 87 F.3d 522, 529 (D.C. Cir. 1996); In the Matter of Petition of the
Connecticut Dep t Pub. Util. Control to Retain Regulatory Control of the Rates of Wholesale Cellular Serv.
Providers in the State of Connecticut, 10 FCC Rcd 7025, 7029, para. 7 (1995) (denying state request for authority to
regulate CMRS wholesale rates and providing that the measure of reasonableness under Section 201 is not dictated
by reference to carriers costs and earnings, but may take account of non-cost considerations such as whether rates
further the public interest by tending to increase the supply of the item being produced and sold ).

8
Federal Communications Commission FCC 18-117

rate regulation, which would include setting rates by reference to a provider s costs.76 Those orders rely
instead on individual negotiations to determine market-driven rates.77 Further, the Commission s data
roaming regime applies a commercially reasonable standard, ensuring providers even more freedom
from agency intervention than the just and reasonable standard that applies in the voice roaming
context.78 Again, the Commission explicitly declined to impose prescriptive regulation of rates, opting
instead to rely on individually negotiated data roaming arrangements. 79 We decline again to do so here
for the reasons set out in those orders.80
17. Flat s argument concerning retail rates is similarly unpersuasive. Flat analyzed only a
single Verizon retail plan a plan that Flat cherry-picked as the lowest-cost from among many available
Verizon plans.81 Flat then assumed that a retail customer is on the phone for every minute of a 90-day
quarter (equal to 2160 hours) and uses approximately 12,000 megabytes of data per quarter.82 These
numbers contrast starkly with the record evidence, including Flat s previous statement that a typical
smartphone prepaid customers incurs about
per quarter.83 Flat s unreliable estimate of voice and data usage under the single Verizon retail plan
apparently under- and overestimates the calculated rates per-MOU for voice and per-megabyte for data.84
Further, Flat reduced its voice and data rate calculations by assuming a large number of SMS text
messages and imputing a price for each85
.86 In light of these shortcomings in Flat s analytical approach,
Flat s retail rate comparison is not sufficiently reliable to be used in considering whether Verizon s offers
in this case violate the Voice Roaming Orders and the Data Roaming Order.

76 See 2007 Voice Order, 22 FCC Rcd at 15832-33, para. 37. Notably, the list of non-exclusive factors the
Commission identified for resolving voice roaming disputes does not include the roaming provider s costs. See
2010 Voice Order, 25 FCC Rcd at 4200-01, para. 39.
77 2007 Voice Order at 15824, para. 18. See also id. at 15831-32, paras. 36-38. The Commission thereby preserved
for host carriers flexibility, subject to a standard of reasonableness, to establish the structure and the level of
roaming rates. 2010 Voice Order, 25 FCC Rcd at 4197-98, para. 32. The Commission reasoned that regulating
rates would impede investment in, and limit build-out of, wireless networks. See id.; 2010 Voice Order, 25 FCC
Rcd at 4200-01, paras. 39-40. Flat argues that the underlying assumptions have changed, dictating a change to
Commission rules; such a request is not appropriate in a complaint proceeding.
78 Cellco P ship v. FCC, 700 F.3d 534, 548 (D.C. Cir. 2012) (emphasis added). See note 18, supra.
79 See Data Roaming Order, 26 FCC Rcd at 5422-23, para 21; id. at 5444-46, para. 68. See also T-Mobile
Declaratory Ruling, 29 FCC Rcd at 15489, para. 19 (allowing host providers substantial room for individualized
bargaining, including on price).
80 For this reason, we deny as moot an application for review of a decision by the Enforcement Bureau s Market
Disputes Resolution Division denying certain cost-related discovery. See Application for Review of NTCH, Inc.,
Proceeding Number 14-212, Bureau ID Number EB-13-MD-006, May 6, 2015. That application for review was
filed in the NTCH case but became relevant to discovery in this case by the parties agreement. See Supplement to
Joint Statement of Flat and Verizon, Proceeding Number 15-147, Bureau ID Number EB-15-MD-005 (filed Feb. 5,
2016) at 1, paras. 1-2; Jt. Statement at 1, para. 3.
81 See Verizon Interrogatory Responses at 2; Flat Initial Br. at 16.
82 See Flat Initial Br. at 16-17.
83 See Complaint at 13
3b0
, para. 28.
84 Flat s retail data rate assumption also is based on a flawed calculation that ignores part of the amount consumers
pay for data, further altering the calculated rate. Compare Flat Initial Br. at 16-17 with Verizon Interrogatory
Responses at 2-7.
85 See Flat Initial Br. at 16-17.
86 Flat s Best and Final Offer at 1; Verizon s Best and Final Offer at 1. See also Complaint at 14, para. 28.