Flat Wireless, LLC v. Federal Communications Commission

          Argued September 27, 2019

          On Petitions for Review of an Order of the Federal Communications Commission

          Donald J. Evans argued the cause for petitioners. With him on the briefs was Keenan P. Adamchak.

          Ashley S. Boizelle, Deputy General Counsel, Federal Communications Commission, argued the cause for respondents. On the brief were Robert B. Nicholson and Robert J. Wiggers, Attorneys, U.S. Department of Justice, Thomas M. Johnson Jr., General Counsel, David M. Gossett, Deputy General Counsel, RichardK. Welch, Assistant General Counsel, and C. Grey Pash Jr., Counsel. Jacob M. Lewis, Associate General Counsel, Federal Communications Commission, and Matthew J. Dunne, Counsel, entered appearances.

          David L. Haga argued the cause for intervenor-appellee. With him on the brief was Christopher M. Miller.

          Before: TATEL and Griffith, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

          OPINION

          SILBERMAN, SENIOR CIRCUIT JUDGE: ^[1]

         Wireless service providers Flat Wireless and NTCH, Inc. (apparently its full name) challenge the FCC's order approving rates that Verizon offered to Flat for both voice and data roaming. They insist that Flat should not pay Verizon much above Verizon's costs of providing those services. Flat's challenge-NTCH's petition is not properly before us^[2]-largely runs counter to Commission rules that deliberately eschew cost-based regulation of roaming rates. Flat nonetheless asserts that its challenge is not to the rules themselves but to how the FCC applied the rules to Verizon's proffered rates. Either way, we reject Flat's petition.

         I.

         We have explained previously that a roaming rate is the charge that wireless provider A pays when its own subscriber travels beyond the range of that provider's network and must use the network of wireless provider B for voice or data services. See NTCH, Inc. v. FCC, 877 F.3d 408, 410 (D.C. Cir. 2017). Voice roaming permits subscribers to make calls when outside their provider's geographic coverage area; data roaming does the same for internet access. Id.

         The Commission issued rules (paradoxically, the FCC traditionally calls them orders) in 2007 and 2010 to govern voice roaming, ^[3] and then followed with a similar rule covering data roaming in 2011.^[4] The Voice Roaming Rules leave it to wireless providers to negotiate voice roaming rates, so long as they offer the service on a "just, reasonable, and non-discriminatory basis." 22 FCC Red. at 15817 ¶ 1; see 47 U.S.C. §§ 201-202. The Commission also provided a non-exhaustive list of factors it might consider if it were obliged to resolve disputes over voice roaming. See 25 FCC Red. at 4200-01 ¶¶ 39-40. The Data Roaming Rule similarly permits individual negotiations, requiring that providers offer data roaming service on "commercially reasonable terms and conditions." 26 FCC Red. at 5411 ¶ 1.

         * * *

         Flat filed a complaint against Verizon with the Commission in 2015 alleging that Verizon's proffered roaming rates (for both voice and data) violated the Commission's rules. Essentially, Flat argued that Verizon's rates are unreasonable because its costs of providing roaming allegedly are far lower than the rates it charges. The Commission refused to consider Verizon's costs in accordance with its regulations and denied Flat's complaint. See In the Matter of Flat Wireless, LLC v. Cellco P 'Ship d/b/a/ Verizon Wireless, 33 FCC Red. 7972 (2018). The FCC reiterated that its rules eschewed direct rate regulation in favor of individual negotiations to determine market-driven rates. Id. at 7980. The Commission, in any event, observed that the rates Verizon offered to Flat were within the range of rates that Verizon charges others; XXXXX.Id. at 7977, 7979. Indeed, the Commission noted that those rates were XXXXX. rates that Verizon itself pays when its own customers roam on other ...