The Honorable Julius Genachowski
Chairman
U.S. Federal Communications Commission
445 li
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Street, S.W.
Washington, D.C. 20554
JOHN D. DINGELL
15TH DISTRICT, MICHIGAN
CHAIRMAN EMERITUS
COMMITTEE ON
ENERGY AND COMMERCE
CO-CHAIR
HOUSE GREAT LAKES
TASK FORCE
MEMBER
MIGRATORY BIRD
CONSERVATION COMMISSION
ltongress of the tinited~tates
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fl)ashington, Jel[ 20515-2215
November 19,2010
WASHINGTON OFFICE:
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Dear Chairman Genachowski:
I understand that the Commission may vote to adopt data roaming rules during its
forthcoming December meeting. While we share the common goal ofenhancing
consumer protection, and I applaud your leadership ofthe Commission in this area, I
remain concerned that you continue to over-interpret the statutory authority granted to the
Commission by the Congress. Further consultation with the Congress on this and other
matters is desperately needed to avoid a glorious mess oflitigation.
In brief, I am concerned that the Commission lacks sufficient statutory authority
by which to enforce the data roaming rules proposed in its April 21, 20 I0, Order on
Reconsideration and Second Further Notice ofProposed Rulemaking. As you are well
aware, private mobile services provide data services to consumers and are, under section
332(c)(2) ofthe Communications Act of 1934, exempt from common carrier regulation.
The aforementioned Commission proposal seeks in essence to apply common
carrier restrictions to mobile data roaming, thus treating what has heretofore been
considered an information service as a telecommunications offering. As our
correspondence ofearlier this year indicates, I had - and continue to have - grave doubts
about the Commission's statutory authority to classify broadband Internet access services
as a telecommunications service, therefore subject to common carrier regulation under
Title II ofthe Act. I fear the legal underpinnings ofthe Commission's proposal
concerning mobile data roaming bear unfortunate analogy to those ofits broadband
access services proceeding.
Similarly, just as Title II regulation ofbroadband access services may restrict the
expansion of communications infrastructure in this country, so, too, may common carrier
regulation ofmobile data roaming. I suspect the imposition ofprice controls on data
roaming, consistent with sections 20 I and 203 ofthe Act, may serve as a disincentive to
mobile providers to expand or improve upon their existing infrastructure in favor ofusing
arbitrarily priced roaming agreements with other carriers to expand their areas of service.
This, as you may wisely agree, runs counter to the explicit goals ofthe
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The Honorable Julius Genachowski
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Telecommunications Act of 1996 and the National Broadband Plan ofpromoting wireless
competition and expanding U.S. telecommunications infrastructure, respectively.
While I share the Commission's laudable goal ofenhancing consumer protection,
I believe the Commission must first consult with the Congress concerning its statutory
ability to achieve this worthy end. Consequently, I hope the Commission, in
contemplating further regulation ofdata roaming, will bear in'mind the views I have
expressed above. It is in the best interest ofconsumers that actions taken by the
Commission be within the limits ofits statutory authority in order to avoid litigation and
uncertainty in industry. Should you have questions concerning this or other matters,
please feel free to contact me directly or have a member ofyour staff contact Andrew
Woelfling in my office at 202-225-4071.
With every good wish,
John D. Dingell
.Member ofCongress
cc: The Honorable Henry Waxman, Chairman
Committee on Energy and Commerce
The Honorable Joe Barton, Ranking Member
Committee on Energy and Commerce
The Honorable Rick Boucher, Chairman
Committee on Energy and Commerce
Subcommittee on Communications, Technology, and the Internet
The Honorable Cliff Stearns, Ranking Member
Committee on Energy and Commerce
Subcommittee on Communications, Technology, and the Internet
The Honorable Michael Copps, Commissioner
U.S. Federal Communications Commission
The Honorable Robert McDowell, Commissioner
U.S. Federal Communications Commission
The Honorable Mignon Clyburn, Commissioner
U.S. Federal Communications Commission
The Honorable Julius Genachowski
Page 3
The Honorable Meredith Atwell Baker, Commissioner
U.S. Federal Communications Commission