United States Court of Appeals, District of Columbia Circuit
September 27, 2019
Petitions for Review of an Order of the Federal
J. Evans argued the cause for petitioners. With him on the
briefs was Keenan P. Adamchak.
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,
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.
SILBERMAN, SENIOR CIRCUIT JUDGE: 
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-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
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.
Commission issued rules (paradoxically, the FCC traditionally
calls them orders) in 2007 and 2010 to govern voice roaming,
then followed with a similar rule covering data roaming in
2011. 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.
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 ...