court my name is scott mcmullen counsel for petitioner in this matter will call interconnecting aka you've all broadband you could start off your day to day with an agency administrative law case full of technological issues i'm hopeful that we can make some of these concepts simpler for you this case involves a challenge to an f c c decision concerning roaming roaming in simplest terms is basically the ability of a subscriber who is traveling outside the area served by their retail provider where that provider has no radio access network  still be able to receive coverage from what is known as a host some other carrier that has contracted with the home carrier the retail provide to allow the home providers customers to roam on their radio access network in this instance because of the way things worked out below world call w c x will always be the home provider and its users will always be the roamers  and for purposes of this case we are dealing with a t and t mobility as the host provider eight hundred eighty has declined to use world calls network for roaming purposes so we will always be a buyer the commission has had roman rule since one thousand nine hundred eighty ever since there was so you are service from the beginning is recognize that roaming is essential to meet the congressional goal stated in section one fifty one of the communications act today require one thousand and two to offer to crimes of roaming that are of note in this case there's a third kind that we're not talking about today we chose not to use it it's not much use at all first eighteen t must offer what's known as an automatic roaming automatic roaming isn't for the involved when the customer is receiving what's called an interconnected service in other words something like voice or texting where the communication is originated in routing using basic telephone number ten digit  telephone and receiving checks while they are roaming and that is automatic roaming we also saw the ability for our users to be able to use the internet while they were roaming and that is data roaming so we saw provision not under your interpretation can you explain how it doesn't of course twenty twelve is known as data roaming it is involved when do what we can tend to be when the enduser is receiving on interconnected servers in this case and for the most part it's internet so when for example the world called an internet customer leaves our area in between houston san antonio and austin and travels to say san antonio or houston or a change he mobility has radio access networks and wants to send you know and e mail or cruise the internet when they do that we would be the one supplying the internet capability and the user would be using a t n t s radio access network which then sends it to a world call interconnect or contention was that when our user is using the internet that's data roaming on the other hand our contention was that when our end user is talking on the telephone or sending or receiving a text both of which involve the use of a telephone number and is therefore interconnected that's automatic from the commission held that automatic roaming did not apply because a t and t never provides interconnection and we agree a will never provide the interconnection here indeed it will never provide the internet either although they did provide is radio access network capability and routing so if you follow the f c c as logic that it all turns on what de host provider is doing the nine hundred eighty is not providing either automatic roaming or data roaming because it does not either provide internet  connection we're told will always be doing so so our contention is it is the commission's interpretation that renders both of these rules no they did not apply either of them or the proper definitions but we're background just we can understand a procedural context we follow complained under the rules at the commission which was referred to the and forstmann bureau on delegated authority the f c c complaint rules work that way  when they when they implemented both the automatic roaming order which deals with voice and texting and other interconnected data services and the data roaming where they said we're going to send these things to the enforcement bureau it will be handled as an adjudication and they set out a new various orders what the criteria and consideration factors were for assessment of whether the agreement was for automatic roman purposes just reasonable nondiscriminatory or for data roaming purposes commercially reasonable enforcement bureau quickly indeed up agreeing with the parties that we had some very fundamental legal disagreements about what the nature of our request was eight eighty contended that when it came to l t e which is the next generation the current generation of cell phone service contended that there was no such thing as automatic roaming on itself to the network no such thing they said they did not have to provide automatic roaming on its network and they did not want to this is so even though the evidence is clear that for purposes of two thousand and twelve eight to eighty and she does provide interconnected right to obtain roaming so that its users could talk on the telephone and send and receive text while roaming we reaffirm that in the initial complaint in the amended complaint in the second a minute complaint in all of our legal analyses and in our application to enter our briefs and our application for review to the commission we never said we want this for internet only ever we said we want both automatic roaming decision on a finding of fact that would call requested an eighty and he would be providing mobile broadband internet access service as part of the arrangement there is absolutely no evidence for that finding in fact all of the evidence the uncontested evidence is that a t n t will not be providing either internet or inner connection all that it will be providing is the ran access and so in that was our very first point of appeal it is a substantial or no evidence point the commission found four times it ought it was so important that you know we did they were going to be offering and providing we were going to be receiving internet when it is just simply not true they will only be providing rent access and that alone that reason alone is a sufficient reason to vacate and remand because there is no substantial evidence to support that material finding that was almost the entire basis of this decision on its rationale for saying the automatic ro and but with a background because there wasn't confusion in the record below the enforcement bureau only automatic roaming issue used a completely different rationale for saying that automatic roaming was not an issue it was in fact using something akin to a waiver analysis the judge iraq just asked me about but that's not what the commission did the commission's decision and we challenge that in our application for review we said the bureau decision makes no sense it is did not adopt the bureau rationale on the automatic roman question it came up with an entirely new theory that had not been advanced by either party or the bureau it invented out of thin air this factual finding that a t n t was going to be providing the internet when as i noted a minute ago the record absolutely clear it will not we did not ask for the internet portion we always said we would supply it never offered to supply the internet fortune and nobody ever said that would it's clear they will not the that what you asked for originally and how it got misconstrued or second amended complaint and the legal analysis which is part of it required to reconsider its order on the automatic roaming decision because its decision was based almost entirely on a finding of fact it has no evidence you need to send it back so that they can if they're going to maintain th fact or is it what you pled that did those are two different things if it's a finding of fact then we have to give a lot of deference but if it's something you're pleading and they're misunderstanding then  dumped well and it may well be both i mean if you read paragraph four to seven of the commission were they stated as if it is a finding of fact but it is also some form of an intermediate or legal conclusion because they use words that are defined in the commission rules they say we are buying mobile broadband internet access terms that are defined in the commission rules and if you take a look at our the little handout we gave i gave this just in case we need to refer to the rules you will find on page one the definitions of both broadband internet access and mobile broadband internet access the evidence is clear eighteen she is not going to be providing the internet so it is a finding of fact and it is a mixed finding of law now with regard to whether we waived or requested this that is a legal conclusion and i think you there's simply no way to objectively determine that we concluded that you didn't even ask for it but what's to keep you from asking for it today will the process here leads to a contract and that contract has been contract would be renegotiated well i see i'm very close to being out of time i would be remiss if i did not at least mention our second point which is the commercial reasonable innes of the process in very simple terms there's prices so high we can't use good morning may it please the court my name is maureen fly and i'm here this morning for the federal communications commission in the united states i want to start talking about how to move the microphone up a bit thank you your honor so i better yes thank you network and it has to be provided on just in reasonable terms data roaming is not interconnected with the public switch network and it has to be offered on commercially reasonable terms so the linchpin here is whether or not the roaming service is in or connected with the public switch telephone network it is undisputed that world call asked eighteen to provide a non interconnected roaming service what world call calls ran only access so the commission and the proceed determined that the roaming rates eighteen to be offered world call were subject to the commercially reasonable standard that applies to data roaming no the history of the rule and the structure of the rule all make clear that it's the service that eighteen t provides to its customers and the nature of the roaming service that world call requests from obligation and d is a political to maurice carriers if such carriers offer real time to waste switched voice or data service that is interconnected with the public switch network so you only  jack to the voice roaming obligation when you provide in or connected services here or world call requested but eighteen t provided a non interconnected roaming service what it calls rant only access is effectively data transmission it doesn't include internet and internet access it doesn't include in our connection so under the text of the rules it didn't fall within the section twenty twelve voice roaming obligation instead the commission has a different role the data roaming role and that's the rule that applies when it carrier like world call asked the host care like eighteen t for a roaming arrangement that does not include interconnection and again those type of arrangements are subject to the commercially reasonable standard that the commission implied in analyzing world calls great dispute with  waived only raised that are before the enforcement bureau and under section five six seven of the communications act filing an application for review with the full commission as a condition precedent to judicial competitive markets for roaming markets competitive markets benefit consumers we were concerned with the impact on particular carriers the evidence in the record show that eighteen t had dozens of roaming agreements with other providers so it seemed to that there was a competitive marketplace now if we adopted the world calls here that a break is only commercially reasonable if the requesting carrier can compete there effectively is no standard at all or it's a very toothless standard and renders obsolete the seventeen different factors that we typically use to to determine whether or not a rate is commercially reasonable and those factors are set forth in paragraph eighty six of the data roaming order now turning ac saying it's world call world calls fault that they can't make a work that could be yet i mean it could be that world hall has a bad business plan that's why the commission looks at because we can't be in the business of looking at business plans and determining whether or not the rate is too high because  reasonable rates from multiple providers our work is done we don't care about world call in particular but about the fact that eighty in t s rights are so much higher than the other providers should the court take into consideration that well but other people would well it isn't it isn't your honor so actually the fact that world call can get service from those other provider should alleviate your concern about eighteen to market power now the availability of roaming service from other providers that's one of the seventeen different factors that we consider when determining a rate whether it is commercially reasonable but actually cuts against world calls arkan that if world call can purchase roaming service from situations eighteen t has again less leverage over at and less ability to charge super competitive r court questions i can turn back to the standard that applies or we can talk about i can talk more about the reasonableness of the rates i'm sorry the point that you just made it is like there is no need for rules if there is competition no your honor our rules from our perspective commercial reasonableness is a range of rates right commercial reasonableness is defined so long as rates are not so high that there is no roaming and no one can provide or very few carriers can provide can roam on eighteen she's network right that high at their so high that no one's roaming or very few providers are roaming that's too high at the bottom and we don't want rates to be slow so loud that carriers like w call depend on eighteen teams roaming service rather than extending their own network to cilla to use and everything in between is presumptively commercially reasonable when you have a dispute between a carrier like world colony teensy we look at the individual in court but if you look at if you look at the evidence in the enforcement or order it goes on at length talking about the fact that a t t had a number of agreements with other with other small wireless carriers role wireless carriers they were making a go of it it seemed as though there was a competitive marketplace and that there was substantial evidence in the record to support the commission's finding that eighteen to use rates were commercially reason but there's also evidence in the record that small people cannot the commission cannot tell texas how to set a rate cap for purposes of state making but the commission so if world believes that eighteen to use roaming rates are so high that it pushes its retail rate a tax rate cap if you just agree that it does i don't know your honor roll call never made that argument to the commission that are going to period for the first time in  three so i don't have a commission response to that argument on the merits because we never had an opportunity to respond to it so it's hard under section four of five the act but putting that aside again the commission when we adopt our roaming rules we're concerned with competition in the marketplace and there is no evidence that in the markets that world call serves that wireless customers cannot get access to roaming services again this goes back to the fact that it might be that world calls business plan is not viable but that's not something that we're concerned with again roaming is a service for customers and there's no evidence that customers in those markets get access to roaming i would also point going back to those comments you know those carriers in the comments were many of them had a range was within two but also the commission can't take a blanket assertion without any rate evidence that rates are too high the way we look at whether or not it's commercially reasonable is to on a case by case basis analyze the specific race based on the factors in the data roaming order and any other relevant factors to the fact that a small wireless carrier roaming to any technologically compatible facilities base c m r s carrier right on a reasonable basis ok so first of all the who what argument is not before the court because it was never raised before the provides roaming as therefore subject to the problem with that is that world call saying when eighteen t falling under eight the problem that is world hosting when eighteen t is providing a non interconnected services this is set forth in section three thirty two d one and t two of communications that is an h e n t always a c m r s carrier no they're not your honor why not because you're done because if you're right because by statute you us carrier when you provide interconnected services if you are not providing energy but it does provide interconnected services it's not to these people but but they do provide those services act your honor but your status is based on what you are providing where does it say that it says and paragraphs twenty five says that the communications act in paragraph or in section three thirty two do you want to do too but this distinction is made i would point the court to paragraph twenty nine of paragraph twenty nine it says we determine that a reasonable request for automatic roaming will be limited to real time to waste which voice and data services provided by c r as carriers that are enter connected with the public switch network and utilize and networks wishing interconnected services and paragraph forty one of the data roaming order and i think this is really what makes the point your honor we acknowledged that commercial mobile data service providers to what is providing non interconnected services that they sometimes also provide commercial radio service ok i think your time is expired and you've answered my question thank you thank you d but they missed the first three words of the of the provision which says upon reasonable requests upon reason request and then the commission answered what is upon reasonable request mean in the voice of order and that was paragraph twenty nine of the voice order and it concluded that because you are a c m or scary that doesn't mean you have to provide everything on a just and reasonable basis it means that you only have to provide those services that you interconnect with a public switch network that's commission answered the question that was presented by w c x below which was well how do you determine whether or not service that is provided is unjust and reasonable do you look at what is providing or do subject to two different standards and i have no idea when one standard applied or another stan are applied and that too is reflected in paragraph five of the commission's order i think the commission got this right and certainly certainly this interpretation of analysis of all the arguments and all the evidence and there was a lot of evidence a t n t put in an analysis of dozens of its agreements these agreements that it had access to and and showed what that the that the rates that it was offering were comparable to those rates and so that the commission properly different properly concluded that that was persuasive and was more persuasive than one agreement that w six was able to identify the commission explained that that  agreement wasn't controlling because one commercial reason melissa is a range and two the commission acknowledged that w c x w c x his position was the key the other carriers that other carr whether it whether w c x can compete it again the commission analyzed that question it was the enforcement bureau in footnote seventy eight looked at this closely looked at the the evidence that was presented looked at the fact that there were other providers in the c m a that were that were in fact competing and were and the fact that he had agreements with rural carriers small rural carriers and eighteen team was paying the same roaming rates that those carriers were pay so that again was evidence that this in and yet so well they've the rural areas adjacent so with regard to there's two parts to that judge all right the first part is that there were other providers other comparable providers in that c m a and so the fact that the w c s may or may not be able to compete that that wouldn't have an impact on competition and that's what the rule was designed to the the other agreements that eighteen t had were with carriers comparable rule carries all throughout the country so i wasn't necessarily c m a not sure whether it works in that rural area well what we do have we are limited by the effort by the information we had and the information that we have the commission found persuasive and found that it appears that we have these agreements with dozens of other carriers and lo and behold those carriers are able to compete or appear able to compete within the texas rate limits so the texas do you see exposition is that the going rate the going retail rate is ten dollars per gigabyte right and under their business plan they have their all their users are going to use twenty bigger bytes and so under the going rate assuming that there is a similar to the going rate it will be two hundred dollars that would be the going rate and that's twice what they alleged to be the texas plan that has nothing that's separate apart from the the row from any cost of roaming to us i don't think they mean under their own plan i don't think it would work their problem with the texas is just thank you i'd like if i could start off with the data roaming price issue are you all just a business destined to fail a big part are you all just a business destined to fail because that's essentially what new counsel opposite are saying  no we are not a business destined to fail great i'm very important thing about successful businesses especially those that are regulated is the extent to which regulators allow them to compete and see to it that they can't compete or on the other hand purposefully strangle them on behalf of larger incumbents who seem to control process if the commission had followed its own rules if it had paid attention to its own criteria in the data roaming order if you take a look at the handout i did and pages seventeen to eighteen this notion of the impact on local interconnect was irrelevant is simply not correct under the data room in order one of the criteria is the extent and nature of providers build at another the impact of the terms and conditions on the incentives for either provider to invest in facilities and coverage services and service quality that clearly asks for the commission to take a look at the impact on world call of the on its ability to compete under the proposed roaming price and if you take a look at some of the other paragraphs in the data roaming order they explained very much why they put in that criteria paragraph fifty even where providers  invested in and built out broadband networks in the regional service territory a service providers inability to offer roaming easily can deter customers from subscribing it found in paragraph seventeen eighteen twenty and thirty that the very purpose of the rule was to allow individual and especially rural providers to offer nationwide roaming including data roaming so that they could attract customers compete with the large providers and use the revenue to finish the buildout in their own areas and so the notion by the enforcement bureau affirmed by the commission the individual impact on we'll call is irrelevant is simply not consistent with the very stated seventeen criteria in the data roaming order paragraph eighty six if you take a look at  commercially reasonable as a commission imagined it in the data roaming order obviously had to consider both the interest of the vendor here eight hundred and the entrance of the buyer  entire piece then roll call cannot compete it cannot attract customers in its area it cannot receive revenues and it cannot finish the build out of its network so to the extent will call might be at risk of going out of business it would be purely because of what the commission did here by completely failing and refusing to apply the stated criteria in its rule the commission did not do what it said it would do which is consider the commercial reasonableness of alternatives we presented one it was not a nationwide solution it was only part of the country we still needed a t and t for the rest of the nation the commission consideration of that price as even relevant to the commercial reasonable discussion further the commission refused to consider w c x s impact evidence and rejected out of hand without real consideration that the evidence that we offered about the other eleven carriers they're only eleven carriers with has l t e contract remember only we do not have the old style generation network and so yes a t and t has lots of agreements but only eleven were for l t e virtually every single one of those carriers at the time we were doing our complain at the commission saying we sure are sorry we signed this this torah bill contract we cannot offer data roaming we cannot offer it we're having to restrict internet we're going out of business we're having to sell purely because of the price we had accepted well i think we did answer most of the questions especially those on the waiver or non presentation to the commission if you take a look at all replied a brief home the question result by the commission was different than the one resolved by the bureau and that's why some of the arguments in the a farce of sideways with what the commission ultimately did we did preserve this we did raise it we did ask for it we presented evidence