A few weeks ago, a group of advocates calling themselves “T-Mobile Petition Supporters” filed an ex parte purporting to show that the Commission should grant T-Mobile’s data roaming petition.  T-Mobile itself then weighed in with yet another letter in the record.  Neither filing offers anything new of substance, much less provides any basis to grant T-Mobile’s petition.

As AT&T has previously demonstrated, T-Mobile’s petition itself shows that data roaming is available at commercially reasonable rates, which have been declining rapidly, and that the Commission’s rules are working.  Although it is evident that T-Mobile and its supporters would like a different set of rules than those adopted in the Data Roaming Order, to the extent they believe that AT&T or anyone else is not offering data roaming services on commercially reasonable terms, they have a remedy:  they can file a complaint.

In fact, the most recent ex partes filed by T-Mobile and its “supporters” underscore why that is the proper context to address their claims.  Let’s look in more detail at the supporters’ letter.  First, the parties at the meeting apparently expressed disbelief that AT&T is a net payor of data roaming expense.  They may be shocked by that, but it’s true.  AT&T currently pays more in data roaming expense than we receive in revenue from our data roaming partners.

The ex parte goes on to complain that AT&T has not provided any information or data to support these claims, “so there is no record-based way to determine the veracity of these assertions.”  Actually there is.  Again, T-Mobile or one of its supporters could file a complaint.  In that context, we could provide the exact record-based evidence that this group admits is essential for the Commission to assess commercial reasonableness.  Surely, the development of such a record is a far better way to resolve fact-based disputes than reliance on general expressions of disbelief voiced in a group advocacy session.

Next, while acknowledging that they have absolutely no insight into why AT&T is a net payor of roaming expense, the supporters go on to speculate about why that might be true.  There’s really no need to speculate – AT&T has made clear, on the record, that our subscribers use more MBs on other carriers’ networks while roaming than other carriers’ subscribers use on ours, and we are charged more than we collect.  And AT&T is charged more for those MBs, on average, than T-Mobile is charged.  But more to the point, the Commission need not and should not rely on group speculation to understand the dynamics of the data roaming marketplace.  If T-Mobile filed a complaint, as contemplated by the Commission’s rules, a full factual record would be developed and be available.

Finally, the supporters argue that the data roaming marketplace is broken, but not a single one of these parties has, to the best of my knowledge, filed a complaint at the FCC alleging that a roaming partner is acting in a commercially unreasonable way or offering commercially unreasonable terms.  They baldly and repeatedly allege that access to roaming on commercially reasonable terms is a broad, industry-wide problem but they avoid any complaint proceeding in which they actually would need to prove that.  Indeed, to my knowledge, the Commission has not issued a single ruling in which, after the presentation of actual evidence, it has found even one carrier to have refused to offer data roaming on commercially reasonable terms.  Hardly a “broken” market.

There is undoubtedly good reason why these parties have not filed a complaint:  data roaming on commercially reasonable terms is widely available, and with the industry transition to LTE, the choice among providers is only increasing.  But what these parties want is something more – what they really seek is a change in the data roaming rules, not enforcement of those rules.  To that extent, they should file a petition for rulemaking.  But, if T-Mobile contends that it is not seeking any rule change, and if it truly believes that it does not have access to commercially reasonable rates, terms and conditions for roaming, it can file a complaint.

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