Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, 43956-43958 [2014-17704]
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Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Rules and Regulations
(1) The requirement to implement
controls meeting reasonably available
control technology (RACT) for NOX; and
(2) Nonattainment area new source
review requirements for major new and
modified sources as they apply to
emissions of NOX.
[FR Doc. 2014–17583 Filed 7–28–14; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 20
[WT Docket No. 05–265; DA 14–865]
Reexamination of Roaming Obligations
of Commercial Mobile Radio Service
Providers and Other Providers of
Mobile Data Services
Federal Communications
Commission.
ACTION: Petition for reconsideration;
denial.
AGENCY:
In this document, the
Wireless Telecommunications Bureau
(Bureau) addresses a petition filed by
Blanca Telephone Company (Blanca),
seeking reconsideration of the
Commission’s decision to reject a
uniform time limit or ‘‘shot clock’’ on
all data roaming negotiations. The
Bureau finds that Blanca presents no
material error or omission in the
Commission’s Data Roaming Order, or
any additional new facts warranting
reconsideration. In the Data Roaming
Order, the Commission’s decision to
reject a single time limit for all
negotiations but to consider requests for
time limits on a case-by-case basis
provides appropriate flexibility in
negotiations that will involve a wide
range of evolving technologies and
commercial contexts, while allowing
parties to seek Commission intervention
if a negotiating partner unduly delays a
particular negotiation.
DATES: Effective July 29, 2014.
FOR FURTHER INFORMATION CONTACT:
Peter Trachtenberg, Spectrum and
Competition Policy Division, Wireless
Telecommunications Bureau, (202) 418–
7369, email peter.trachtenberg@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Wireless
Telecommunications Bureau’s Order on
Reconsideration, WT Docket No. 05–
265, DA 14–865, adopted June 25, 2014,
and released June 25, 2014. The full text
of this document is available for
inspection and copying during business
hours in the FCC Reference Information
Center, Portals II, 445 12th Street SW.,
Room CY–A257, Washington, DC 20554.
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SUMMARY:
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Also, it may be purchased from the
Commission’s duplicating contractor at
Portals II, 445 12th Street SW., Room
CY–B402, Washington, DC 20554; the
contractor’s Web site, https://
www.bcpiweb.com; or by calling (800)
378–3160, facsimile (202) 488–5563, or
email FCC@BCPIWEB.com. Copies of
the Order on Reconsideration also may
be obtained via the Commission’s
Electronic Comment Filing System
(ECFS) by entering the docket number
WT Docket No. 05–265. Additionally,
the complete item is available on the
Federal Communications Commission’s
Web site at https://www.fcc.gov.
1. Data Roaming Order, 76 FR 26199,
May 6, 2011. Data roaming allows
consumers to obtain data services over
their mobile devices when they travel
outside their own provider’s network
coverage areas, by relying on another
provider’s network. In the Data Roaming
Order, the Commission sought to
promote consumer access to nationwide
mobile broadband service by adopting a
rule 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. To ensure that the
data roaming rule is sufficiently flexible
to apply to a wide range of evolving
technologies and commercial contexts,
the Commission allowed providers ‘‘[to]
negotiate the terms of their roaming
arrangements on an individualized
basis.’’ As the Commission explained,
this means that providers may tailor
roaming agreements to ‘‘individualized
circumstances without having to hold
themselves out to serve all comers
indiscriminately on the same or
standardized terms.’’
2. The Commission made clear that,
once a provider requests a data roaming
arrangement, a would-be host provider
‘‘has a duty to respond promptly to the
request and avoid actions that unduly
delay or stonewall the course of
negotiations regarding that request.’’
The Commission also addressed
commenter proposals designed to limit
delay tactics in data roaming
negotiations, including proposals to
establish a mandatory, uniform time
limit, described as a ‘‘shot clock,’’ for all
negotiations subject to the
Commission’s data roaming rule. The
Commission declined to adopt a
mandatory, uniform time limit based on
the Commission’s assessment that some
data roaming negotiations may be ‘‘more
complex or fact-intensive’’ than others
and require more time. Instead, the
Commission determined that if a
provider believes that another provider
is unduly delaying a data roaming
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negotiation, it may ask the Commission
to set a time limit for that particular
negotiation.
3. The Commission provided that it
would address all such individual
requests for a time limit, and any other
disputes over a provider’s conduct
during data roaming negotiations, on a
case-by-case basis, taking into
consideration the totality of the
circumstances. Among the factors that
the Commission stated it may consider
in determining the commercial
reasonableness of a host provider’s
conduct during negotiations are whether
the provider ‘‘has responded to the
request for negotiation,’’ whether it has
engaged in ‘‘a persistent pattern of
stonewalling behavior,’’ and ‘‘the length
of time since the initial request.’’ The
Commission held that a party to a data
roaming dispute may seek relief through
either a petition for declaratory ruling or
a formal or informal complaint, and it
established specific dispute resolution
procedures to ensure the prompt
resolution of any data roaming disputes
brought before it.
4. Blanca Telephone Company
Petition for Reconsideration. On June 6,
2011, Blanca filed the instant Petition,
which requests that the Commission
‘‘reconsider and reverse its decision
declining to adopt a time limit for
roaming negotiations’’ that are subject to
the Commission’s data roaming
requirements. Blanca explains that the
proposed time limit or ‘‘shot clock’’
would allow ‘‘either party to a
negotiation, after a reasonable period
such as 60 days,’’ to refer the matter to
the Commission for resolution pursuant
to the dispute resolution processes
established in the Data Roaming Order.
Blanca contends that the Commission’s
decision to address claims of undue
delay on a case-by-case basis, rather
than establishing a uniform time limit
for all data roaming negotiations, is
flawed in two respects. First, it argues
that the Commission’s stated rationale
for this decision—i.e., that some
negotiations may be more complex or
fact-intensive than others and thus
require more time—failed to quantify
the actual number of negotiations that
are likely to involve complex issues.
According to Blanca, ‘‘[i]f it turns out to
be the case that relatively few
negotiations fall into the ‘complex’
category,’’ then the Commission’s
determination ‘‘will have imposed an
unwarranted disadvantage on smaller
rural and regional’’ providers seeking
data roaming arrangements with
nationwide providers. Second, Blanca
maintains that the Commission’s
decision to impose time limits on a
case-by-case basis will place an
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29JYR1
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Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Rules and Regulations
additional burden on smaller carriers
that lack bargaining power by requiring
them to demonstrate the need for a time
limit in the course of their negotiations
with larger national providers.
5. On November 21, 2011, the
Commission released a Public Notice,
76 FR. 74721, December 1, 2011,
announcing the filing of the Petition and
seeking comment. In response, the
Commission received three comments
and three replies. Other than AT&T, all
commenters, including several
providers and associations, supported
the petition.
6. Pursuant to section 1.429 of the
Commission’s rules, parties may
petition for reconsideration of final
orders in a rulemaking proceeding.
Reconsideration is generally appropriate
only where the petitioner shows either
a material error or omission in the
original order or raises additional facts
not known or not existing until after the
petitioner’s last opportunity to respond.
7. In 2011, in order ‘‘to allow the
agency to resolve certain petitions for
reconsideration more efficiently and
expeditiously,’’ the Commission
amended its rules to delegate authority
to the relevant bureau or office to
dismiss or deny petitions filed in either
rulemaking or non-rulemaking
proceedings, if the petition ‘‘plainly
does not warrant consideration by the
full Commission.’’ Among the kinds of
petitions that the Commission found
would satisfy this standard are those
that fail to identify any material error,
omission, or reason warranting
reconsideration, or that rely on
arguments that have been fully
considered and rejected by the
Commission within the same
proceeding. In this case, as discussed
below, Blanca’s first argument about the
likely frequency of complex data
roaming negotiations that may require
more time than permitted under a ‘‘shot
clock’’ is a wholly speculative one that
fails to identify any material error,
omission, or reason warranting
reconsideration. Blanca’s second
argument, based on the incentives of the
largest mobile broadband providers, was
specifically considered and rejected in
the Data Roaming Order, and in any
event also fails to identify any material
error, omission, or reason warranting
reconsideration. Given these
circumstances, the Bureau exercises its
delegated authority under section
1.429(l) of the rules to address and deny
Blanca’s petition.
8. As noted above, Blanca first
challenges the rationale for the
Commission’s decision to reject a ‘‘shot
clock’’ in favor of a case-by-case
approach for addressing allegations of
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undue carrier delay of negotiations,
which the Commission preferred
because some negotiations may be more
complex or fact-intensive than others.
Blanca argues that the Commission
failed to quantify the actual number of
negotiations that are likely to involve
complex issues. It hypothesizes that it
may ‘‘tur[n] out to be the case’’ that
there are relatively few complex
negotiations requiring additional time.
The Bureau finds that this kind of
speculation about the nature of future
data roaming negotiations under the
Commission’s new rules does not
present a material error, omission or
reason warranting reconsideration. As
these rules and procedures regarding
negotiations over data roaming
arrangements were newly created in this
proceeding, there is little track record
upon which to calculate the likely
number of complex negotiations that
may occur, and Blanca has provided
nothing concrete upon which to base
such a projection. Moreover, the very
nature of the evolving mobile broadband
industry, the variable nature of the
network configurations, services,
technologies, and business plans
involved, and the individualized nature
of data roaming agreements make it
unrealistic to predict the relative
number of data roaming negotiations
that may raise complex or fact-intensive
issues at any given time. Further, this
uncertainty itself counsels against
establishing a uniform deadline in all
cases, particularly given the ability of
providers under the rule to negotiate
individualized data roaming
agreements. Blanca’s argument therefore
does not support reconsideration of the
Commission’s approach.
9. Blanca and other commenters
supporting the petition also argue the
Commission failed to consider the larger
providers’ greater bargaining power and
lack of incentives to enter into roaming
agreements. They contend that the
Commission’s approach exacerbates this
problem and that only a ‘‘shot clock’’
will adequately address incentives to
delay. The Bureau disagrees. The
Commission carefully considered the
impact of incentives on parties’
negotiating conduct. In deciding to
adopt its data roaming rule, the
Commission highlighted the concern
that ‘‘consolidation may have . . .
reduced the incentives of the largest two
providers to enter into [data roaming]
arrangements by reducing their need for
reciprocal roaming.’’ Further, it adopted
specific measures to address the
possibility that providers might engage
in unreasonable delay. In particular, the
Commission imposed on providers a
PO 00000
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43957
duty to respond promptly to requests for
data roaming and avoid actions that
unduly delay negotiations regarding that
request, and it provided an enforceable
remedy. It further provided that if a
requesting provider believes that the
other party is violating its duty by
unduly delaying the negotiation, the
provider may bring such claim to the
Commission at any time and ask the
Commission to set a deadline for one or
both parties to act. The Commission also
emphasized that ‘‘in the event a wouldbe host provider violates its duty by
actions that unduly delay or stonewall
the course of negotiations, [the
Commission] stands ready to move
expeditiously with fines, forfeitures,
and other appropriate remedies, which
should reduce any incentives to delay
data roaming negotiations.’’
10. Accordingly, Blanca’s argument
based on disparate bargaining power has
already been fully considered and
rejected by the Commission. It also
identifies no material error, omission, or
reason warranting reconsideration.
While Blanca and other commenters
allege that roaming negotiations can
take inordinate periods of time, they fail
to demonstrate that the processes
established in the Data Roaming Order
rules are inadequate to address
problems of unreasonable delay. They
offer no reason why providers cannot
avail themselves of the established
remedies, including the ability to ask
the Commission to set a deadline for a
particular negotiation, or evidence that
providers have utilized current
procedures and found them ineffective.
11. In conclusion, the Commission
finds nothing in the arguments or the
record justifying reconsideration of the
Commission’s approach, which was
designed to ensure that the data roaming
rule remains sufficiently flexible to
apply to a wide range of evolving
technologies and commercial contexts,
while allowing individual providers to
seek expedited intervention by the
Commission when a provider is unduly
delaying the course of a data roaming
negotiation. Accordingly, the Petition is
denied. The Bureau reminds parties,
however, that the Commission
‘‘intend[s] to closely monitor further
development of the commercial mobile
broadband data marketplace and
stand[s] ready to take additional action
if necessary to help ensure’’ that the
goals of the data roaming proceeding are
achieved.
12. Accordingly, it is ordered,
pursuant to the authority contained in
Sections 1, 2, 4(i), 4(j), 301, 303, 304,
309, 316, 332, and 405 of the
Communications Act of 1934, as
amended, and Section 706 of the
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29JYR1
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Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Rules and Regulations
Telecommunications Act of 1996, 47
U.S.C. 151, 152, 154, 301, 303, 304, 309,
316, 332, 405, and 1302, and the
delegated authority under Section 1.429
of the Commission’s rules, 47 CFR
1.429, that this Order on
Reconsideration is adopted, effective on
publication of the text or summary
thereof in the Federal Register.
13. It Is Further Ordered, pursuant to
the authority contained in Section 405
of the Communications Act of 1934, as
amended, 47 U.S.C. 405, and Section
1.429 of the Commission’s rules, 47 CFR
1.429, that the Petition for
Reconsideration filed by Blanca
Telephone Company on June 6, 2011, is
denied.
Federal Communications Commission.
Roger Sherman,
Chief, Wireless Telecommunications Bureau.
[FR Doc. 2014–17704 Filed 7–28–14; 8:45 am]
BILLING CODE 6712–01–P
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 1803, 1816, and 1852
RIN 2700–AE08
NASA Federal Acquisition Regulation
Supplement (NFS): Contractor
Whistleblower Protections
National Aeronautics and
Space Administration (NASA).
ACTION: Interim rule.
AGENCY:
NASA is issuing an interim
rule amending the NASA FAR
Supplement (NFS) to implement
statutory requirements providing
whistleblower protections for contractor
and subcontractor employees and to
address the allowability of legal costs
incurred by a contractor related to
whistleblower proceedings.
DATES: Effective date: July 29, 2014. In
accordance with FAR 1.108(d)(3),
contracting officers are encouraged to
include the changes in this interim rule
in major modifications to contracts and
orders awarded prior to the effective
date of this interim rule.
Comment date: Comments on this
interim rule should be submitted in
writing to the address shown below on
or before September 29, 2014.
ADDRESSES: Interested parties may
submit comments, identified by RIN
number 2700–AE08 via the Federal
eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Comments may also be submitted to
Leigh Pomponio via email at
leigh.pomponio@NASA.gov. Comments
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SUMMARY:
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received generally will be posted
without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting.
FOR FURTHER INFORMATION CONTACT:
Leigh Pomponio, NASA, Office of
Procurement, email: leigh.pomponio@
NASA.gov or phone: 202–358–0592.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule revises the NFS to
implement a policy providing
whistleblower protections for contractor
and subcontractor employees. This rule
implements 10 U.S.C. 2409 as amended
by section 846 of the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181) and section 827 of the
National Defense Authorization Act for
Fiscal Year 2013 (Pub. L. 112–239).
Section 846, entitled Protection of
Contractor Employees from Reprisal for
Disclosure of Certain Information, and
Section 827, entitled ‘‘Enhancement of
Whistleblower Protections for
Contractor Employees,’’ made extensive
changes to 10 U.S.C. 2409, entitled
‘‘Contractor employees: protection from
reprisal or disclosure.’’ Paragraph (g) of
section 827 amended paragraph (k) of 10
U.S.C. 2324, ‘‘Allowable costs under
defense contracts’’ which is also
applicable to NASA contracts.
Paragraph (g) is implemented by this
interim rule.
Paragraph 827(i)(1) specifies that the
amendments made by section 827 are
applicable to—
Contracts awarded on or after the
effective date;
Task orders entered into on or after
the effective date, pursuant to contracts
awarded before, on, or after such date;
and
Contracts awarded before the effective
date, which are modified to include a
contract clause providing for the
applicability of such amendments.
Paragraph 827(i)(3) requires that at the
time of any major modification to a
contract that was awarded before the
effective date, the head of the
contracting agency shall make best
efforts to include, in the contract, a
clause providing for the applicability to
the contract of the amendments made by
section 827.
Section 846 of the NDAA for FY 2008
and Section 827 of the NDAA for FY
2013 created a standalone statute for
NASA that is not dependent on the
Federal Acquisition Regulation (FAR)
coverage. The NASA contractor
PO 00000
Frm 00040
Fmt 4700
Sfmt 4700
whistleblower rule is based on an
independent statute that applies only to
Title 10 agencies. Section 828, Pilot
Program for Enhancement of Contractor
Whistleblower Protections, of the NDAA
for FY 2013 has been implemented in
the FAR; see FAR Case 2013–015, 78 FR
60169, https://www.gpo.gov/fdsys/pkg/
FR-2013-09-30/html/2013-23703.htm.
Section 828 establishes a four-year
‘‘pilot program’’ to provide enhanced
whistleblower protections for
employees of civilian agency contractors
and subcontractors and suspend the use
of FAR 3.901 through 3.906.
The FAR also incorporates sections
827(g) and 828(d) of the NDAA for FY
2013 (Pub. L. 112–239); see FAR Case
2013–017, 78 FR 60173, https://
www.gpo.gov/fdsys/pkg/FR-2013-09-30/
pdf/2013-23764.pdf, which address
legal costs incurred by a contractor in
connection with a proceeding
commenced by a contractor employee
submitting a complaint under the
applicable whistleblower section.
B. Discussion and Analysis
The current FAR addresses this
subject at subpart 3.9. This rule will add
NASA-unique requirements at Subpart
1803.9 of the NFS, entitled
‘‘Whistleblower Protections for
Contractor Employees.’’ The subpart
covers the policy, procedures for filing
and investigating complaints, remedies,
clause prescriptions, and a related
clause at NFS 1852.203–71, entitled
‘‘Requirement to Inform Employees of
Whistleblower Rights’’.
This interim rule also adds a
prescription at 1816.3 and a clause
1852.216–90, ‘‘Allowability of Legal
Costs Incurred in Connection with a
Whistleblower Proceeding’’ to
implement paragraph (g) of section 827
which addresses treatment of cost
incurred in connection with
whistleblower proceedings. Due to the
effective date of the Act, and because
the Act encourage agencies to modify
contracts (at the time of any major
modification to a contract) that were
awarded before the effective date of the
Act, it is necessary to create a revised
cost principle applicable to any task
orders issued against contracts awarded
prior to the effective date of this
regulation and any contracts modified to
implement section 827. Otherwise, FAR
clause 52.216–7, Allowable Cost and
Payment governs.
C. Changes to NFS
The statutory changes to 10 U.S.C.
2409 made by section 846 of the
National Defense Authorization Act for
Fiscal Year 2008 and section 827 of the
National Defense Authorization Act for
E:\FR\FM\29JYR1.SGM
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Agencies
[Federal Register Volume 79, Number 145 (Tuesday, July 29, 2014)]
[Rules and Regulations]
[Pages 43956-43958]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17704]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 20
[WT Docket No. 05-265; DA 14-865]
Reexamination of Roaming Obligations of Commercial Mobile Radio
Service Providers and Other Providers of Mobile Data Services
AGENCY: Federal Communications Commission.
ACTION: Petition for reconsideration; denial.
-----------------------------------------------------------------------
SUMMARY: In this document, the Wireless Telecommunications Bureau
(Bureau) addresses a petition filed by Blanca Telephone Company
(Blanca), seeking reconsideration of the Commission's decision to
reject a uniform time limit or ``shot clock'' on all data roaming
negotiations. The Bureau finds that Blanca presents no material error
or omission in the Commission's Data Roaming Order, or any additional
new facts warranting reconsideration. In the Data Roaming Order, the
Commission's decision to reject a single time limit for all
negotiations but to consider requests for time limits on a case-by-case
basis provides appropriate flexibility in negotiations that will
involve a wide range of evolving technologies and commercial contexts,
while allowing parties to seek Commission intervention if a negotiating
partner unduly delays a particular negotiation.
DATES: Effective July 29, 2014.
FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg, Spectrum and
Competition Policy Division, Wireless Telecommunications Bureau, (202)
418-7369, email peter.trachtenberg@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Wireless
Telecommunications Bureau's Order on Reconsideration, WT Docket No. 05-
265, DA 14-865, adopted June 25, 2014, and released June 25, 2014. The
full text of this document is available for inspection and copying
during business hours in the FCC Reference Information Center, Portals
II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Also, it
may be purchased from the Commission's duplicating contractor at
Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554;
the contractor's Web site, https://www.bcpiweb.com; or by calling (800)
378-3160, facsimile (202) 488-5563, or email FCC@BCPIWEB.com. Copies of
the Order on Reconsideration also may be obtained via the Commission's
Electronic Comment Filing System (ECFS) by entering the docket number
WT Docket No. 05-265. Additionally, the complete item is available on
the Federal Communications Commission's Web site at https://www.fcc.gov.
1. Data Roaming Order, 76 FR 26199, May 6, 2011. Data roaming
allows consumers to obtain data services over their mobile devices when
they travel outside their own provider's network coverage areas, by
relying on another provider's network. In the Data Roaming Order, the
Commission sought to promote consumer access to nationwide mobile
broadband service by adopting a rule 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. To ensure that the data
roaming rule is sufficiently flexible to apply to a wide range of
evolving technologies and commercial contexts, the Commission allowed
providers ``[to] negotiate the terms of their roaming arrangements on
an individualized basis.'' As the Commission explained, this means that
providers may tailor roaming agreements to ``individualized
circumstances without having to hold themselves out to serve all comers
indiscriminately on the same or standardized terms.''
2. The Commission made clear that, once a provider requests a data
roaming arrangement, a would-be host provider ``has a duty to respond
promptly to the request and avoid actions that unduly delay or
stonewall the course of negotiations regarding that request.'' The
Commission also addressed commenter proposals designed to limit delay
tactics in data roaming negotiations, including proposals to establish
a mandatory, uniform time limit, described as a ``shot clock,'' for all
negotiations subject to the Commission's data roaming rule. The
Commission declined to adopt a mandatory, uniform time limit based on
the Commission's assessment that some data roaming negotiations may be
``more complex or fact-intensive'' than others and require more time.
Instead, the Commission determined that if a provider believes that
another provider is unduly delaying a data roaming negotiation, it may
ask the Commission to set a time limit for that particular negotiation.
3. The Commission provided that it would address all such
individual requests for a time limit, and any other disputes over a
provider's conduct during data roaming negotiations, on a case-by-case
basis, taking into consideration the totality of the circumstances.
Among the factors that the Commission stated it may consider in
determining the commercial reasonableness of a host provider's conduct
during negotiations are whether the provider ``has responded to the
request for negotiation,'' whether it has engaged in ``a persistent
pattern of stonewalling behavior,'' and ``the length of time since the
initial request.'' The Commission held that a party to a data roaming
dispute may seek relief through either a petition for declaratory
ruling or a formal or informal complaint, and it established specific
dispute resolution procedures to ensure the prompt resolution of any
data roaming disputes brought before it.
4. Blanca Telephone Company Petition for Reconsideration. On June
6, 2011, Blanca filed the instant Petition, which requests that the
Commission ``reconsider and reverse its decision declining to adopt a
time limit for roaming negotiations'' that are subject to the
Commission's data roaming requirements. Blanca explains that the
proposed time limit or ``shot clock'' would allow ``either party to a
negotiation, after a reasonable period such as 60 days,'' to refer the
matter to the Commission for resolution pursuant to the dispute
resolution processes established in the Data Roaming Order. Blanca
contends that the Commission's decision to address claims of undue
delay on a case-by-case basis, rather than establishing a uniform time
limit for all data roaming negotiations, is flawed in two respects.
First, it argues that the Commission's stated rationale for this
decision--i.e., that some negotiations may be more complex or fact-
intensive than others and thus require more time--failed to quantify
the actual number of negotiations that are likely to involve complex
issues. According to Blanca, ``[i]f it turns out to be the case that
relatively few negotiations fall into the `complex' category,'' then
the Commission's determination ``will have imposed an unwarranted
disadvantage on smaller rural and regional'' providers seeking data
roaming arrangements with nationwide providers. Second, Blanca
maintains that the Commission's decision to impose time limits on a
case-by-case basis will place an
[[Page 43957]]
additional burden on smaller carriers that lack bargaining power by
requiring them to demonstrate the need for a time limit in the course
of their negotiations with larger national providers.
5. On November 21, 2011, the Commission released a Public Notice,
76 FR. 74721, December 1, 2011, announcing the filing of the Petition
and seeking comment. In response, the Commission received three
comments and three replies. Other than AT&T, all commenters, including
several providers and associations, supported the petition.
6. Pursuant to section 1.429 of the Commission's rules, parties may
petition for reconsideration of final orders in a rulemaking
proceeding. Reconsideration is generally appropriate only where the
petitioner shows either a material error or omission in the original
order or raises additional facts not known or not existing until after
the petitioner's last opportunity to respond.
7. In 2011, in order ``to allow the agency to resolve certain
petitions for reconsideration more efficiently and expeditiously,'' the
Commission amended its rules to delegate authority to the relevant
bureau or office to dismiss or deny petitions filed in either
rulemaking or non-rulemaking proceedings, if the petition ``plainly
does not warrant consideration by the full Commission.'' Among the
kinds of petitions that the Commission found would satisfy this
standard are those that fail to identify any material error, omission,
or reason warranting reconsideration, or that rely on arguments that
have been fully considered and rejected by the Commission within the
same proceeding. In this case, as discussed below, Blanca's first
argument about the likely frequency of complex data roaming
negotiations that may require more time than permitted under a ``shot
clock'' is a wholly speculative one that fails to identify any material
error, omission, or reason warranting reconsideration. Blanca's second
argument, based on the incentives of the largest mobile broadband
providers, was specifically considered and rejected in the Data Roaming
Order, and in any event also fails to identify any material error,
omission, or reason warranting reconsideration. Given these
circumstances, the Bureau exercises its delegated authority under
section 1.429(l) of the rules to address and deny Blanca's petition.
8. As noted above, Blanca first challenges the rationale for the
Commission's decision to reject a ``shot clock'' in favor of a case-by-
case approach for addressing allegations of undue carrier delay of
negotiations, which the Commission preferred because some negotiations
may be more complex or fact-intensive than others. Blanca argues that
the Commission failed to quantify the actual number of negotiations
that are likely to involve complex issues. It hypothesizes that it may
``tur[n] out to be the case'' that there are relatively few complex
negotiations requiring additional time. The Bureau finds that this kind
of speculation about the nature of future data roaming negotiations
under the Commission's new rules does not present a material error,
omission or reason warranting reconsideration. As these rules and
procedures regarding negotiations over data roaming arrangements were
newly created in this proceeding, there is little track record upon
which to calculate the likely number of complex negotiations that may
occur, and Blanca has provided nothing concrete upon which to base such
a projection. Moreover, the very nature of the evolving mobile
broadband industry, the variable nature of the network configurations,
services, technologies, and business plans involved, and the
individualized nature of data roaming agreements make it unrealistic to
predict the relative number of data roaming negotiations that may raise
complex or fact-intensive issues at any given time. Further, this
uncertainty itself counsels against establishing a uniform deadline in
all cases, particularly given the ability of providers under the rule
to negotiate individualized data roaming agreements. Blanca's argument
therefore does not support reconsideration of the Commission's
approach.
9. Blanca and other commenters supporting the petition also argue
the Commission failed to consider the larger providers' greater
bargaining power and lack of incentives to enter into roaming
agreements. They contend that the Commission's approach exacerbates
this problem and that only a ``shot clock'' will adequately address
incentives to delay. The Bureau disagrees. The Commission carefully
considered the impact of incentives on parties' negotiating conduct. In
deciding to adopt its data roaming rule, the Commission highlighted the
concern that ``consolidation may have . . . reduced the incentives of
the largest two providers to enter into [data roaming] arrangements by
reducing their need for reciprocal roaming.'' Further, it adopted
specific measures to address the possibility that providers might
engage in unreasonable delay. In particular, the Commission imposed on
providers a duty to respond promptly to requests for data roaming and
avoid actions that unduly delay negotiations regarding that request,
and it provided an enforceable remedy. It further provided that if a
requesting provider believes that the other party is violating its duty
by unduly delaying the negotiation, the provider may bring such claim
to the Commission at any time and ask the Commission to set a deadline
for one or both parties to act. The Commission also emphasized that
``in the event a would-be host provider violates its duty by actions
that unduly delay or stonewall the course of negotiations, [the
Commission] stands ready to move expeditiously with fines, forfeitures,
and other appropriate remedies, which should reduce any incentives to
delay data roaming negotiations.''
10. Accordingly, Blanca's argument based on disparate bargaining
power has already been fully considered and rejected by the Commission.
It also identifies no material error, omission, or reason warranting
reconsideration. While Blanca and other commenters allege that roaming
negotiations can take inordinate periods of time, they fail to
demonstrate that the processes established in the Data Roaming Order
rules are inadequate to address problems of unreasonable delay. They
offer no reason why providers cannot avail themselves of the
established remedies, including the ability to ask the Commission to
set a deadline for a particular negotiation, or evidence that providers
have utilized current procedures and found them ineffective.
11. In conclusion, the Commission finds nothing in the arguments or
the record justifying reconsideration of the Commission's approach,
which was designed to ensure that the data roaming rule remains
sufficiently flexible to apply to a wide range of evolving technologies
and commercial contexts, while allowing individual providers to seek
expedited intervention by the Commission when a provider is unduly
delaying the course of a data roaming negotiation. Accordingly, the
Petition is denied. The Bureau reminds parties, however, that the
Commission ``intend[s] to closely monitor further development of the
commercial mobile broadband data marketplace and stand[s] ready to take
additional action if necessary to help ensure'' that the goals of the
data roaming proceeding are achieved.
12. Accordingly, it is ordered, pursuant to the authority contained
in Sections 1, 2, 4(i), 4(j), 301, 303, 304, 309, 316, 332, and 405 of
the Communications Act of 1934, as amended, and Section 706 of the
[[Page 43958]]
Telecommunications Act of 1996, 47 U.S.C. 151, 152, 154, 301, 303, 304,
309, 316, 332, 405, and 1302, and the delegated authority under Section
1.429 of the Commission's rules, 47 CFR 1.429, that this Order on
Reconsideration is adopted, effective on publication of the text or
summary thereof in the Federal Register.
13. It Is Further Ordered, pursuant to the authority contained in
Section 405 of the Communications Act of 1934, as amended, 47 U.S.C.
405, and Section 1.429 of the Commission's rules, 47 CFR 1.429, that
the Petition for Reconsideration filed by Blanca Telephone Company on
June 6, 2011, is denied.
Federal Communications Commission.
Roger Sherman,
Chief, Wireless Telecommunications Bureau.
[FR Doc. 2014-17704 Filed 7-28-14; 8:45 am]
BILLING CODE 6712-01-P