Cellco Partnership v. Federal Communications Commission
403 U.S. App. D.C. 105
| D.C. Cir. | 2012Background
- FCC has long imposed roaming on wireless carriers; data roaming rule extends roaming to mobile-data providers on commercially reasonable terms.
- Data roaming rule adopted in 2011 after record showed data roaming impediments on 3G networks and concerns about nationwide access.
- Verizon challenged authority under Title III and argued rule imposes common-carrier obligations on mobile-data providers.
- Commission relied on Title III provisions (notably 303(b), 303(r), 316) and ancillary authority to justify data roaming; also invoked public-interest grounds.
- Court analyze authority and common carriage issue, and defer to FCC interpretation of common carriage as applied to data roaming.
- Court ultimately rejects Verizon challenges and upholds the data roaming rule as authorized and not a taking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title III authorizes the data roaming rule | Verizon: no Title III authority to require data roaming | FCC: Title III, esp. 303(b), 303(r), 316, and ancillary authority authorize rule | Yes, Title III authorizes the rule |
| Whether data roaming imposes common-carrier status on mobile-data providers | Verizon: rule constitutes common carriage for mobile-data providers | FCC: rule is not per se common carriage; allows individualized terms | No, rule does not on its face impose common carriage |
| Whether FCC acted arbitrarily and capriciously in adopting the rule | Verizon: record insufficient; data roaming unnecessary | FCC: substantial record showing need and considered costs/benefits | No; record supports reasoned decision |
| Whether data roaming rule effects an unconstitutional taking | Verizon: takings concern under Bell Atlantic/compensation | FCC: any takings would be compensated; not per se taking | Not a taking on its face; as-applied challenges possible |
Key Cases Cited
- FCC v. Midwest Video Corp., 440 U.S. 689 (1979) (struck down public-access rules as creating common carriage)
- Midwest Video Corp. v. FCC, 440 U.S. 689 (1979) (see above (public-access))
- Midwest Video I, 406 U.S. 649 (1972) (origination rules vs. access rules; distinction on common carriage)
- Southwestern Cable Co. v. FCC, 392 U.S. 157 (1968) (no mandatory hold-out; regulation not per se common carriage)
- MCI Telecommunications Corp. v. AT&T, 512 U.S. 218 (1994) (modification of licenses; scope of regulatory power)
- Community Television, Inc. v. FCC, 216 F.3d 1133 (D.C. Cir. 2000) (limits of modifying licenses; caution against fundamental changes)
- U.S. Telecom Association v. FCC, 295 F.3d 1326 (D.C. Cir. 2002) (affirms Chevron deference to FCC common-carrier interpretations)
- NBC v. United States, 319 U.S. 190 (1943) (public-interest standards must be tied to explicit authority)
- MCI Worldcom Network Services, Inc. v. FCC, 274 F.3d 542 (D.C. Cir. 2001) (agency interpretations deserve deference in regulatory context)
- United States v. Green, 499 F.2d 538 (D.C. Cir. 1974) (jurisdictional review under statutory routes)
- Reno v. Flores, 507 U.S. 154 (1993) (Arising in facial challenges to agency rules)
- Carroll v. University System of Georgia, 338 U.S. 586 (1950) (limits on Commission authority over contracts between licensees)
- Celtronix Telemetry v. FCC, 272 F.3d 589 (D.C. Cir. 2001) (illustrates scope of licensee regulation by FCC)
- Public Access rules v. common carriage (Midwest Video II), 440 U.S. 689 (1979) (distinguishes between common carriage and permissible regulation)