The Honorable Julius Genachowski Chairman Federal Communications Commission 445 12 th Street, S.W. Washington, D.C. 20515 ./230 CAMMON Haul. OFfICE IllADlNa IZfWAl~N,DC 20515 11021225-1978 FAX: (202) 22.5-3389 11/23/10 16:16 FAX SUE MYRICK ant DISTRICT, NOflTH CAfKlLlNA co....nul: ENERGY AND COMMERCE SlJI;eCWAlll1'HI Qtj: H.....TH COMMERCE, TRAGI, AND CON8VMI!JI Pl'IoTI!CTlON HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE FINANCIAL SERVICES ION LEAVI!I • fCongrt9~of tbt 1intttb.tatt~ ~OUltof~tpttltntatt\ltl ....blngton. iDe: 20515 November 23, 2010 o o 1ilI001 DISTRICT OfFICES: eS21S MOIlllIION BouLEV"RO Sum 100 CHARLO'm, NC 28211 (704)3tl2·1060 FAX: 1700 367-08152 191WESTMAlN AVI!N\lE QAITCNIA, NC 28QU (704)0'.1976 ,~ ti~/b Dear Chairman Genachowski: It has come to my attention that the Commission may soon issue an Order regarding wireless data roaming. I am concerned about this action and respectfully ask the Commission to consider several factors before moving forward in an attempt to regulate the wireless market. The wireless industry has seen a tremendous amount ofgrowth over the last 15 years. In fact, in 1995 there were nearly 29 million wireless customers across the U.S. By 2010 that number has grown to over 293 million customers. This growth is attributed to the innovation and investment in wireless networks and the devices that have transformed the way that we communicate today. In 1995, consumers used cell phones simply to make phone calls. Today, they use smartphones not only to talk, but to text, email, surf the Internet, watch videos and download apps that have given a whole new meaning to the term ''mobile.'' I have concem over the Commission's potential Order on several grounds and seek additional information and answers to the questions below please: I) Please identify what provisions in the Communications Act give the Commission the statutory authority to regulate data roaming and provide a basis on which the Commission can move forward with an Order. 2) It is my understanding that data roaming and the wireless broadband Internet access that it provides are not telecommunications services, but rather information services that the Commission has previously determined are not subject to common carrier regulation. Given that the Commission has stated that roaming is a common carrier obligation, how does the Commission justify adoption ofa data roaming mandate in light ofSections 153 and 332 ofthe Act? 3) Section 332 ofthe Act permits common carrier regulation of"commercial mobile service" but prohibits common carrier regulation of"private mobile services." Please F'ftINTEO ON "ECYCLED PA"," 11/23/10 16:17 FAX Ia! 002 explain how data roaming meets the statutory definition ofcommercial mobile service or its functional equivalent. I also raise a concern that the Commission is "moving the goalposts" after several eatTiers have bid and paid for spectrum in the 700 MHz band. Many ofthese carriers have finished field testing and trials of40 services and are in the process oflaunching service to the general public. Establishing overly prescriptive regulations on a nascent service that has not yet even launched and been made available to the public is concerning. Absent clear statutory authority in the Act, or new authority given to the FCC by Congress, and concrete data suggesting a problem in the marketplace, I see no justification for the Coinmission to move forward in its proceeding. Furthermore, I am concerned about the message that the Commission could be sending to the marketplace. According to the latest figures by the CTIA-The Wireless Association, wireless carriers spent over $21.6 billion dollars in capital expenditures from June 2009 to June of20 IO. Since 2001, wireless carriers have made an average combined investment ofmore than $20.2 billion per year to upgrade their networks. This represents a huge amount ofeconomic investment and job creation at a time when the rest ofthe economy has been struggling. Moreover, the number ofjobs created by wireless carriers has grown from 60,000 in 1995 to over 235,000 employees who are directly employed by wireless carriers today. To layer the wireless industry with onerous and overly prescriptive regulations would only create more uncertainty and govemment bureaucracy and do little to incentivize all wireless carriers to continue to invest in their networks. . In order to keep wireless competition vibrant and encourage continued innovation and creativity, I hope the Commission will.resist the temptation to add new layers ofregulation. Issuing an Order that tests the limits ofthe statutory authority given to you by Congress could potentially stifle innovation and investment and create additional uncertainty in the marketplace. Thank you and I look forward to hearing from you soon. Sincerely, Sue Myrick Member ofCongress