Cellco Partnership v. Federal Communications Commission , 700 F.3d 534 ( 2012 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued September 20, 2012         Decided December 4, 2012
    No. 11-1135
    CELLCO PARTNERSHIP,
    APPELLANT
    v.
    FEDERAL COMMUNICATIONS COMMISSION,
    APPELLEE
    BRIGHT HOUSE NETWORKS, LLC, ET AL.,
    INTERVENORS
    Consolidated with 11-1136
    On Petition for Review of and On Appeal from an Order of
    the Federal Communications Commission
    Helgi C. Walker argued the cause for appellant. With her
    on the briefs were Thomas R. McCarthy, Brett A. Shumate,
    Henry Weissmann, Michael E. Glover, and John T. Scott III.
    Andrew G. McBride entered an appearance.
    Peter Karanjia, Deputy General Counsel, Federal
    Communications Commission, argued the cause for appellee.
    With him on the brief were Catherine G. O'Sullivan and
    2
    Finnuala K. Tessier, Attorneys, U.S. Department of Justice,
    Austin C. Schlick, General Counsel, Federal Communications
    Commission, Richard K. Welch, Deputy Associate General
    Counsel, and Laurence N. Bourne, Counsel.
    Richard P. Bress argued the cause for intervenors. With
    him on the brief were James H. Barker, Matthew A. Brill,
    Alexander Maltas, Carl W. Northrop, Michael L. Lazarus,
    Caressa D. Bennet, Michael R. Bennet, Jill Canfield, Daniel
    L. Brenner, Jessica L. Ellsworth, Peter M. Connolly, and
    Douglas E. Hart.
    Carl W. Northrop, Michael L. Lazarus, Andrew Morentz
    and Mark A. Stachiw were on the brief for intervenor
    MetroPCS Communications, Inc. in support of appellee.
    Thomas J. Sugrue, Luisa Lancetti, Howard J. Symons,
    and Russell H. Fox were on the brief for intervenor T-Mobile
    USA, Inc. in support of appellee.
    Harold Feld was on the brief for amici curiae Public
    Knowledge, et al. in support of appellee.
    Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.
    Opinion for the Court filed by Circuit Judge TATEL.
    TATEL, Circuit Judge: The Federal Communications
    Commission has long imposed “roaming” requirements on
    wireless telephone companies. Roaming occurs when wireless
    subscribers travel outside the range of their own carrier’s
    network and use another carrier’s network infrastructure to
    make a call. Until the issuance of the rule challenged in this
    case, mobile carriers’ obligation to permit roaming extended
    3
    only to voice-telephone services. Recognizing the growing
    importance of mobile data in a wireless market in which
    smartphones—cellphones that can connect to the internet—
    are increasingly common, the Commission adopted a rule
    requiring mobile-data providers to offer roaming agreements
    to other such providers on “commercially reasonable” terms.
    Cellco Partnership, more commonly known as Verizon,
    challenges the “data roaming rule” on multiple grounds. Most
    significantly, Verizon argues that the Commission lacks
    statutory authority to issue the rule and that the rule
    unlawfully treats mobile-internet providers as common
    carriers. We disagree on both counts. Title III of the
    Communications Act of 1934 plainly empowers the
    Commission to promulgate the data roaming rule. And
    although the rule bears some marks of common carriage, we
    defer to the Commission’s determination that the rule imposes
    no common carrier obligations on mobile-internet providers.
    In response to Verizon’s remaining arguments, we conclude
    that the rule does not effect an unconstitutional taking and is
    neither arbitrary nor capricious. We therefore reject Verizon’s
    challenge to the data roaming rule.
    I.
    The Communications Act of 1934, 
    47 U.S.C. §§ 151
     et
    seq., endows the Federal Communications Commission with
    broad authority to oversee wire and radio communication in
    the United States. Title II of the Act authorizes the
    Commission to regulate common carrier services, including
    telecommunications services like landline telephone services.
    See 
    id.
     §§ 201 et seq. It also sets forth the duties of common
    carriers, including the obligations to “furnish . . .
    communication service upon reasonable request,” id.
    § 201(a), to charge “just and reasonable” rates, id. § 201(b),
    and to refrain from “mak[ing] any unjust or unreasonable
    4
    discrimination in charges . . . or services,” id. § 202(a).
    Although the Act’s definition of “common carrier” is
    unsatisfyingly circular, see id. § 153(11) (defining a “common
    carrier” as “any person engaged as a common carrier for
    hire”), the Commission has interpreted it to exclude providers
    of “information services,” defined as “the offering of a
    capability for generating, acquiring, storing, transforming,
    processing, . . . or making available information via
    telecommunications.” Id. § 153(24). See Appropriate
    Regulatory Treatment for Broadband Access to the Internet
    Over Wireless Networks, 22 F.C.C.R. 5901, 5919 ¶ 50 (2007)
    (“Broadband Classification Order”).
    Title III of the Act empowers the Commission to regulate
    radio transmissions, including traditional radio, broadcast
    television, and mobile telephony. See id. §§ 301 et seq.
    Although mobile telephony involves radio transmission and
    thus falls under the Commission’s Title III authority, the Act
    provides that some mobile-telephone services are also subject
    to Title II’s common carriage requirements. See id.
    § 332(c)(1)(A). In particular, section 332 specifies that
    providers of “commercial mobile services,” such as wireless
    voice-telephone service, are common carriers, whereas
    providers of other mobile services are exempt from common
    carrier status. See id. § 332(d)(3), (c)(2).
    The Commission has previously determined and here
    concedes that wireless internet service both is an “information
    service” and is not a “commercial mobile service.” See
    Broadband Classification Order, 22 F.C.C.R. at 5915–21
    ¶¶ 37–56; Verizon’s Br. 11 n.6, 19 n.11. Accordingly, mobile-
    data providers are statutorily immune, perhaps twice over,
    from treatment as common carriers. See id. Given that
    mobile-voice providers are considered common carriers, the
    5
    exclusion of mobile-data services from the common carriage
    regime subjects cellphone companies like Verizon, which
    provide both services, to a bifurcated regulatory scheme. Cf.
    National Association of Regulatory Utility Commissioners v.
    FCC (NARUC II), 
    533 F.2d 601
    , 608 (D.C. Cir. 1976) (noting
    that a single entity “can be a common carrier with regard to
    some activities but not others”). Even though wireless carriers
    ordinarily provide their customers with voice and data
    services under a single contract, they must comply with Title
    II’s common carrier requirements only in furnishing voice
    service. Likewise, the Commission may invoke both its Title
    II and its Title III authority to regulate mobile-voice services,
    but may not rely on Title II to regulate mobile data.
    The Commission’s foray into roaming began in 1981
    when it adopted a limited voice roaming requirement as part
    of the original cellular-service rules. See An Inquiry Into the
    Use of the Bands 825–845 MHz and 870–890 MHz for
    Cellular Communications Systems and Amendment of Parts 2
    and 22 of the Commission’s Rules Relative to Cellular
    Communications Systems, 86 F.C.C. 2d 469, 502 ¶¶ 75–76
    (1981); see also Reexamination of Roaming Obligations of
    Commercial Mobile Radio Service Providers and Other
    Providers of Mobile-data services, 26 F.C.C.R. 5411, 5412
    ¶ 3 & n.2 (2011) (“Data Roaming Order”) (explaining origins
    of roaming regulation). As cellphones grew ubiquitous and
    nationwide travel more frequent, the need for more robust
    roaming regulations became clear. Although some carriers
    were voluntarily entering into roaming arrangements with
    other providers—under which the subscribers of one carrier
    could roam on the network of the other—in many cases
    subscribers of smaller carriers remained unable to use their
    mobile phones when traveling outside their home networks.
    Seeking to promote nationwide access to cellphone service,
    6
    the Commission in 2007 dramatically expanded carriers’
    roaming obligations by mandating that they offer roaming
    agreements to other carriers on a just, reasonable, and
    nondiscriminatory basis. See Reexamination of Roaming
    Obligations of Commercial Mobile Radio Service Providers,
    22 F.C.C.R. 15817, 15818 ¶¶ 1–3 (2007) (“2007 Voice
    Roaming Order”). In using this classic common carriage
    standard, the Commission expressly invoked Title II,
    explaining that mobile-voice providers have “a common
    carrier obligation” to provide roaming. See 
    id.
     at 15818 ¶ 1.
    Three years later, in 2010, the Commission further expanded
    and clarified voice providers’ roaming obligations in ways not
    relevant to this case. See Reexamination of Roaming
    Obligations of Commercial Mobile Radio Service Providers
    and Other Providers of Mobile-data services, 25 F.C.C.R.
    4181, 4190–4201 ¶¶ 18–40 (2010) (“2010 Voice Roaming
    Order”). Under these Voice Roaming Orders, subscribers of a
    small carrier in Nebraska, for example, can travel to New
    York and use Verizon’s cell towers to make phone calls.
    Demonstrating the success of the orders, most cellphone users
    experience no service disruption when traveling beyond their
    provider’s service range.
    The roaming regulations, however, extended only to
    mobile-voice services. Absent an obligation to permit
    roaming, some mobile-data providers were voluntarily
    entering into data roaming agreements, but this was often not
    the case, especially on “advanced ‘3G’ data networks.” See
    Data Roaming Order, 26 F.C.C.R. at 5424–27 ¶¶ 24–27.
    Conscious of the increasing importance of mobile internet and
    seeking to promote nationwide access, the Commission began
    formal consideration of whether and how it might institute a
    data-roaming requirement. See 2007 Voice Roaming Order,
    22 F.C.C.R. at 15845–47 ¶¶ 77–81. To that end, when the
    7
    Commission issued the 2007 Voice Roaming Order, it sought
    comment on the propriety of extending roaming obligations to
    data services as well as on the potential “legal and policy
    basis for doing so.” 
    Id.
     at 15845 ¶ 79. In the 2010 Voice
    Roaming Order, the Commission again requested input about
    a potential data roaming rule. See 2010 Voice Roaming Order,
    25 F.C.C.R. at 4207–24 ¶¶ 50–91.
    Approximately two dozen parties, including numerous
    providers of mobile-internet services, filed formal comments
    in response to these requests. See Data Roaming Order, 26
    F.C.C.R. at 5416–18 ¶¶ 11–12. All but two major national
    carriers—Verizon and AT&T—favored a data roaming rule in
    some form. See 
    id.
     The supporting commenters emphasized
    that wireless providers must be able to offer nationwide
    internet access in order to compete in the current mobile
    marketplace. See 
    id.
     at 5416–17 ¶ 11. The commenters also
    pointed out that because larger carriers had no obligation to
    offer roaming agreements, they were often unwilling to do so
    on reasonable terms. See 
    id.
     Mandating that providers offer
    such agreements, the commenters maintained, would preserve
    appropriate incentives for investment in network expansion
    while ensuring that newer and smaller providers would be
    able to compete. See 
    id.
     Verizon and AT&T opposed data
    roaming regulation on both legal and policy grounds. See 
    id.
    at 5417–18 ¶ 12, 5439 ¶ 60. They argued not only that the
    Commission lacked statutory authority to obligate mobile-
    internet providers to offer roaming, but also that a data
    roaming rule was unnecessary—because providers were
    already entering into roaming agreements voluntarily—and
    inadvisable—because it would reduce investment incentives.
    See 
    id.
     As Verizon and AT&T saw it, the benefit a data
    roaming rule would confer on smaller carriers would come at
    the expense of larger carriers because the obligation to share
    8
    network space would prevent them from fully capitalizing on
    their investments in network infrastructure.
    Based on the record created in response to its 2007 and
    2010 requests for comment, the Commission adopted the Data
    Roaming Order on April 7, 2011. See id. at 5411. In general
    terms, the Order instituted a rule requiring “providers of
    commercial mobile-data services to offer data roaming
    agreements to other such providers on commercially
    reasonable terms and conditions, subject to certain
    limitations.” Id. at 5411 ¶ 1. Addressing AT&T’s and
    Verizon’s objections at length, the Commission ultimately
    found that the data roaming rule would “best promote
    consumer access to seamless mobile data coverage
    nationwide, appropriately balance the incentives for new
    entrants and incumbent providers to invest in and deploy
    advanced networks across the country, and foster competition
    among multiple providers in the industry.” Id. at 5418 ¶ 13.
    The Commission explained that it was adopting the rule
    through an exercise of its authority under “several provisions
    of Title III,” id. at 5412 ¶ 2, including section 303(b), which
    authorizes the Commission to “[p]rescribe the nature of the
    service to be rendered by each class of licensed station.” 
    47 U.S.C. § 303
    (b); see also Data Roaming Order, 26 F.C.C.R.
    at 5441 ¶ 62. The Commission also noted that the rule
    “furthers the goals” of other statutory provisions, see Data
    Roaming Order, 26 F.C.C.R. at 5442 ¶ 64 (citing section
    706(a) and (b) of the Telecommunications Act of 1996, 
    47 U.S.C. § 1302
    ), and suggested in a footnote that the rule falls
    within the agency’s “ancillary authority.” See 
    id.
     at 5442 ¶ 63
    n.176. Two members of the Commission dissented, arguing
    primarily that the data roaming rule violates the
    Communications Act and Commission precedent by imposing
    a common carriage obligation on mobile data providers. See
    9
    
    id.
     at 5483–84 (Dissenting Statement of Commissioner
    McDowell); 
    id.
     at 5487–88 (Dissenting Statement of
    Commissioner Baker).
    Several features of the data roaming rule are especially
    relevant here. The rule requires providers to “offer data
    roaming arrangements on commercially reasonable terms and
    conditions,” but it permits them to “negotiate the terms of
    their roaming arrangements on an individualized basis.” 
    Id.
     at
    5432 ¶ 43. As the Order explains, this means that providers
    may tailor roaming agreements to “individualized
    circumstances without having to hold themselves out to serve
    all comers indiscriminately on the same or standardized
    terms.” 
    Id.
     at 5433 ¶ 45. The Order also excuses providers
    from offering data roaming where it is not “technically
    feasible,” 
    id.
     at 5432 ¶ 43, and establishes a process for
    resolving disputes arising out of data-roaming negotiations
    that is “similar” to the voice roaming dispute resolution
    process. 
    Id.
     at 5448 ¶ 74.
    Challenging the Commission’s decision, Verizon
    advances two primary arguments and a flurry of smaller-scale
    objections. First, it argues that the data roaming rule violates
    the statutory prohibition against treating mobile-internet
    providers as common carriers. Second, it asserts that the
    Commission lacked affirmative authority under Title III or
    any other statutory provision to promulgate the rule. Although
    Verizon presents the common carrier issue first, we think it
    more natural to begin with the question of the Commission’s
    affirmative authority. We thus address these issues in Sections
    II and III in that sequence. Then, in Section IV we consider
    Verizon’s arguments that the data roaming rule effects an
    unconstitutional taking and is arbitrary and capricious.
    10
    Although Verizon filed both a petition for review
    pursuant to 
    47 U.S.C. § 402
    (a) and a notice of appeal pursuant
    to 
    47 U.S.C. § 402
    (b), “we need not decide which is the more
    appropriate” vehicle for our review “[s]ince . . . we plainly
    have jurisdiction by the one procedural route or the other.”
    United States v. Green, 
    499 F.2d 538
    , 540 n.5 (D.C. Cir.
    1974).
    II.
    The Commission identified three potential sources of
    regulatory authority for the data roaming rule: Title III of the
    Communications Act, section 706 of the Telecommunications
    Act of 1996, and the Commission’s ancillary authority, see
    Comcast Corp. v. FCC, 
    600 F.3d 642
    , 644 (D.C. Cir. 2010)
    (explaining that the Commission has authority to promulgate
    regulations “‘reasonably ancillary to the . . . effective
    performance of its statutorily mandated responsibilities’”
    (quoting American Library Association v. FCC, 
    406 F.3d 689
    ,
    692 (D.C. Cir. 2005))). Verizon argues that not one of these
    authorities empowers the Commission to promulgate the rule.
    In deciding whether the Commission acted pursuant to
    delegated authority, we begin—and end—with Title III.
    The extent of the Commission’s Title III authority is, of
    course, a question of statutory interpretation. Chevron’s
    familiar framework governs our review of the Commission’s
    interpretation of the Communications Act, its organic statute.
    See National Cable & Telecommunication Association v.
    Brand X Internet Services, 
    545 U.S. 967
    , 981 (2005) (“[W]e
    apply the Chevron framework to the Commission’s
    interpretation of the Communications Act.”). According to
    Verizon, however, Chevron deference does not extend to
    interpretive questions, like this one, that implicate the scope
    of an agency’s jurisdiction. But this Court has repeatedly held
    otherwise. See, e.g., Transmission Agency of Northern
    11
    California v. FERC, 
    495 F.3d 663
    , 673 (D.C. Cir. 2007) (“In
    determining whether FERC has acted beyond its jurisdiction,
    we grant FERC Chevron deference.”); National Mining Ass’n
    v. U.S. Army Corps of Engineers, 
    145 F.3d 1399
    , 1403 (D.C.
    Cir. 1998) (“The ‘jurisdictional’ character of the issue has no
    effect on the level of deference . . . .”); Oklahoma Natural
    Gas Co. v. FERC, 
    28 F.3d 1281
    , 1283–84 (D.C. Cir. 1994)
    (discussing Chevron’s applicability to jurisdictional questions
    and ultimately proceeding under the Chevron framework). To
    be sure, as Verizon pointed out in a post-oral argument letter,
    the Supreme Court has granted certiorari on this issue. See
    City of Arlington v. FCC, 
    2012 WL 4748083
     (U.S. Oct. 5,
    2012) (No. 11-1545). But the outcome of that case will make
    no difference here for, as we shall explain, the statute clearly
    affords the Commission the ability to promulgate the data
    roaming rule. See Chevron, U.S.A., Inc. v. Natural Resources
    Defense Council, 
    467 U.S. 837
    , 842–43 (1984) (“If the intent
    of Congress is clear, that is the end of the matter; for the
    court, as well as the agency, must give effect to the
    unambiguously expressed intent of Congress.”).
    Title III affords the Commission “broad authority to
    manage spectrum . . . in the public interest.” Data Roaming
    Order, 26 F.C.C.R. at 5440 ¶ 62. In invoking its Title III
    powers, the Commission both spoke in general terms about
    Title III’s broader purposes and relied on several of its
    specific provisions. It focused in particular on two provisions
    in section 303: section 303(b), which authorizes the agency to
    “‘[p]rescribe the nature of the service to be rendered by each
    class of licensed stations and each station within any class’”;
    and section 303(r), which empowers the Commission, subject
    to the demands of the public interest, to “‘[m]ake such rules
    and regulations and prescribe such restrictions and conditions,
    not inconsistent with law, as may be necessary to carry out the
    12
    provisions of this chapter.’” See 
    id.
     at 5441 ¶ 62 & nn. 172–
    73 (quoting 
    47 U.S.C. § 303
    (b), (r)). In addition, the
    Commission pointed to section 316, which empowers it to
    modify existing licenses, including by rulemaking, “if it
    determines that such action ‘will promote the public interest,
    convenience, and necessity.’” See 
    id.
     at 5441 ¶ 62 & nn. 170–
    71 (quoting 
    47 U.S.C. § 316
    (a)(1) and citing, e.g., Celtronix
    Telemetry v. FCC, 
    272 F.3d 585
    , 589 (D.C. Cir. 2001)). These
    provisions, the Commission concluded, authorize it to adopt
    the data roaming rule. See 
    id.
     at 5442 ¶ 63.
    Verizon argues that the Commission’s interpretation of
    its Title III authority represents “an unprecedented and
    unbounded theory of regulatory power over wireless Internet
    service under its general ‘public interest’ authority.”
    Verizon’s Reply Br. 18. Focusing on the Commission’s more
    general statements about Title III instead of its references to
    specific sections of the statute, Verizon maintains that the
    Commission justified the rule solely on the basis of its finding
    that the rule would serve the public interest. Because “[t]he
    FCC cannot act in the ‘public interest’ if the agency does not
    otherwise have the authority to promulgate the regulations at
    issue,” Motion Picture Association of America, Inc. v. FCC
    (MPAA), 
    309 F.3d 796
    , 806 (D.C. Cir. 2002), Verizon
    believes that the Commission’s public-interest finding is
    insufficient to bring the rule within Title III’s scope.
    Although Title III does not “confer an unlimited power,”
    NBC v. United States, 
    319 U.S. 190
    , 216 (1943), the Supreme
    Court has emphasized that it does endow the Commission
    with “expansive powers” and a “comprehensive mandate to
    ‘encourage the larger and more effective use of radio in the
    public interest.’” 
    Id. at 219
     (quoting 
    47 U.S.C. § 303
    (g)).
    True, the Commission may not rely on Title III’s public-
    13
    interest provisions without mooring its action to a distinct
    grant of authority in that Title. See MPAA, 
    309 F.3d at 806
    .
    But here the Commission did not rely solely on its power to
    act in the public interest. Instead, it expressly relied on
    particular delegations of authority in Title III, such as section
    303(b).
    As the Order itself explains, section 303(b) directs the
    Commission, consistent with the public interest, to
    “[p]rescribe the nature of the service to be rendered by each
    class of licensed stations and each station within any class.”
    
    47 U.S.C. § 303
    (b). As a glance at a dictionary confirms,
    “prescribe” means, among other things, “to lay down a rule.”
    Webster’s Third New International Dictionary 1792 (1993).
    That is exactly what the data roaming rule does—it lays down
    a rule about “the nature of the service to be rendered” by
    entities licensed to provide mobile-data service. Verizon
    argues that the data roaming rule exceeds the bounds of
    section 303(b) because instead of merely prescribing the
    nature of a service, the rule mandates the provision of service.
    Not so. Like any other entity, Verizon may choose not to
    provide mobile-internet service. Like other rules that govern
    Title III services, the data roaming rule merely defines the
    form mobile-internet service must take for those who seek a
    license to offer it. Especially when taken together with section
    303(r), which supplements the Commission’s ability to carry
    out its mandates via rulemaking even if it confers no
    independent authority, see MPAA, 
    309 F.3d at 806
    , and
    section 316, which enables the Commission to “alter the term
    of existing licenses by rulemaking,” Celtronix Telemetry, 
    272 F.3d at 589
    , we think it clear that the data roaming rule falls
    well within the Commission’s Title III authority.
    14
    Verizon nonetheless contends that the Data Roaming
    Order runs afoul of three limitations on the Commission’s
    regulatory power. First, relying on the Supreme Court’s
    statement in FCC v. Sanders Brothers Radio Station that the
    Communications Act “does not essay to regulate the business
    of the licensee,” 
    309 U.S. 470
    , 475 (1940), Verizon argues
    that the data roaming rule exceeds the Commission’s power to
    intrude into carriers’ business affairs. Sanders Brothers,
    however, held merely that the Commission has “no
    supervisory control of [licensees’] programs, . . . business
    management or . . . policy.” 
    Id.
     It stands only for the
    uncontroversial proposition that the Commission lacks a
    general mandate to regulate a licensee’s business separate and
    apart from the authority otherwise conferred by Title III.
    Nothing in Sanders Brothers imposes an independent
    limitation on the Commission’s regulatory authority.
    Second, Verizon invokes Regents of University System of
    Georgia v. Carroll, which held that “the Communications Act
    [does not] give authority to the Commission to determine the
    validity of contracts between licensees and others.” 
    338 U.S. 586
    , 602 (1950). Because the data roaming rule establishes
    the terms on which providers must deal with third parties—
    namely, other providers who wish to enter into roaming
    agreements and their subscribers—Verizon argues that it
    conflicts with Carroll. Unlike Sanders Brothers, Carroll does
    impose a limit on the Commission’s regulatory authority.
    Carroll’s scope, however, is quite modest, as the decision
    holds only that the Commission lacks authority to invalidate
    licensees’ contracts with third parties and to abrogate state-
    law contract remedies. See 
    id.
     Although the data roaming rule
    dictates certain interactions between licensees and third
    parties, this kind of third-party impact differs in kind from the
    state-law contract issue at stake in Carroll. Because Verizon
    15
    nowhere suggests that the data roaming rule will void third-
    party contracts, Carroll does not stand in the Commission’s
    way.
    Third, Verizon contends that Title III gives the
    Commission no authority to make “fundamental changes” to
    the terms of existing licenses. See MCI Telecommunications
    Corp. v. AT&T, 
    512 U.S. 218
    , 228 (1994) (holding that
    statutory “authority to ‘modify’ does not contemplate
    fundamental changes”); Community Television, Inc. v. FCC,
    
    216 F.3d 1133
    , 1140–41 (2000) (applying that reasoning to
    section 316). Insisting that the data roaming rule effects a
    “revolutionary change to wireless licenses,” Verizon’s Br. 50,
    Verizon argues that the rule exceeds the Commission’s Title
    III authority. Verizon is right that the Commission’s section
    316 power to “modif[y]” existing licenses does not enable it
    to fundamentally change those licenses. See Community
    Television, 
    216 F.3d at 1141
    . The data roaming rule, however,
    cannot be said to have wrought such a “fundamental change.”
    Indeed, a comparison to the Supreme Court’s decision in MCI
    v. AT&T makes this quite clear. There, the Court held that the
    Commission’s power to “modify” requirements related to
    telecommunications carriers’ obligation to file tariffs did not
    include the power to eliminate tariffs entirely. See MCI, 
    512 U.S. at 229
    ; see also Community Television, 
    216 F.3d at 1141
    (distinguishing MCI). Of course, given that the data roaming
    rule requires nothing more than the offering of “commercially
    reasonable” roaming agreements, it hardly effects such a
    radical change. Indeed, imposing a limited obligation to offer
    data-roaming agreements to other mobile-data providers “can
    reasonably be considered [a] modification[ ] of existing
    licenses.” Community Television, 
    216 F.3d at 1141
    .
    16
    III.
    Having concluded that Title III authorizes the
    Commission to promulgate the data roaming rule, we arrive at
    the critical issue—Verizon’s contention that the rule
    contravenes the Communications Act’s prohibition against
    treating mobile-internet providers as common carriers. Before
    resolving the statutory question, however, we must address
    Verizon’s antecedent argument, namely, that the Commission
    is bound by its statement in the Voice Roaming Orders that
    automatic roaming—that is, roaming that takes place pursuant
    to a preexisting agreement between providers, see Data
    Roaming Order, 26 F.C.C.R. at 5412 ¶ 3 n.2—is inherently
    common carriage. In support, Verizon points to portions of
    those Orders that speak to roaming in general terms. But
    context matters. In characterizing the voice roaming rule as a
    common carrier requirement, the Commission was merely
    invoking its Title II authority and applying that Title’s
    common carriage standards to voice roaming. Especially
    given the “high level of deference due to an agency in
    interpreting its own orders and regulations,” MCI Worldcom
    Network Services, Inc. v. FCC, 
    274 F.3d 542
    , 548 (D.C. Cir.
    2001), we have little difficulty concluding that the
    Commission’s classification of the voice roaming rule as a
    common carrier obligation does not amount to a conclusion
    that automatic-roaming requirements necessarily entail
    common carriage. We thus must address Verizon’s statutory
    argument.
    Whether the data roaming rule runs afoul of the statutory
    exclusion of mobile-internet providers from common carrier
    status hinges on the meaning of the term “common carrier.”
    Again, Verizon contests the applicability of Chevron
    deference. Relying primarily on our decision in National
    Association of Regulatory Utility Commissioners v. FCC
    17
    (NARUC I), 
    525 F.2d 630
    , 644 (D.C. Cir. 1975), Verizon
    insists that the Commission’s interpretation of “common
    carrier” warrants no deference because the Act merely
    codified a concept of common carriage that was well
    established at common law. But to the extent we suggested as
    much in NARUC I, a decision predating Chevron, that
    suggestion was dicta. Instead, we are bound by our express
    determination in U.S. Telecom Association v. FCC, 
    295 F.3d 1326
     (D.C. Cir. 2002), that the Commission’s interpretation
    and application of the term “common carrier” warrants
    Chevron deference. See 
    id.
     at 1331–32.
    In arguing that the data roaming rule imposes a common
    carriage obligation, Verizon relies primarily on the Supreme
    Court’s decision in FCC v. Midwest Video Corp. (Midwest
    Video II), 
    440 U.S. 689
     (1979). There, the Court struck down
    the Commission’s “public access” rules on the ground that the
    agency had “relegated cable systems, pro tanto, to common
    carrier status.” 
    Id.
     at 700–01. Because the Communications
    Act provides that an entity “engaged in . . . broadcasting shall
    not . . . be deemed a common carrier,” 
    47 U.S.C. § 153
    (11),
    and because the public-access rules “impose[d] common-
    carrier obligations on cable operators,” Midwest Video II, 
    440 U.S. at 701
    , the Court concluded that the Commission lacked
    authority to promulgate them. According to Verizon, the data
    roaming rule similarly imposes a common carriage obligation
    on an entity statutorily excluded from common carrier status.
    At oral argument, Verizon made its position crystal clear:
    because the company does not qualify as a common carrier
    with respect to mobile-data services, the Commission has no
    authority to compel it to permit other providers’ subscribers to
    roam on its network. See Oral Arg. Tr. 23–24.
    18
    The Commission concedes that, in keeping with Midwest
    Video II, it has no authority to treat mobile-data providers like
    Verizon as common carriers. Rather, the Commission defends
    its conclusion, reached after express consideration of
    Verizon’s position, that the data roaming rule does not
    relegate mobile-data providers to common carrier status. See
    Data Roaming Order, 26 F.C.C.R. at 5444–46 ¶ 68. The
    dispute thus turns on whether the requirements imposed by
    the data roaming rule are, notwithstanding the Commission’s
    contrary determination, fundamentally common carriage
    obligations. On the one hand, Verizon points to features of the
    rule it contends are characteristic of common carriage, such as
    the enforceable obligation to offer service to all comers and
    the similarity between the rule’s “commercially reasonable”
    standard and the “just and reasonable” standard applicable to
    common carriers. On the other hand, the Commission’s Order
    highlights those aspects of the rule that diverge from the
    classic common carrier duties, like the permissibility of
    individualized contract terms and the distance between
    “commercially reasonable” and “just and reasonable.” See 
    id.
    The rule plainly bears some marks of common carriage. The
    question is whether those marks so predominate as to
    “relegate[ ]” mobile-internet providers “to common-carrier
    status.” Midwest Video II, 
    440 U.S. at
    700–01.
    A brief history of common carriage helps answer this
    question. For centuries, common carriage principles have
    structured the transportation and communications industries.
    Borrowing from English common law traditions that imposed
    certain duties on individuals engaged in “common callings,”
    such as innkeepers, ferrymen, and carriage drivers, American
    common law has long applied the concept of common
    carriage to transportation and communications enterprises.
    See, e.g., Interstate Commerce Commission v. Baltimore &
    19
    O.R. Co., 
    145 U.S. 263
    , 275 (1892) (explaining that even
    prior to the passage of the Interstate Commerce Act, railroads
    were bound by the common law duties of common carriers);
    Western Union Telegraph Co. v. Call Publishing Co., 
    181 U.S. 92
    , 98, 102 (1901) (telegraph company subject to
    common law common carriage duties). Under the common
    law, all comers had “equal rights” of access to a common
    carrier’s enterprise, “both in respect to service and charges.”
    Western Union, 
    181 U.S. at 100
    .
    Over the decades, these common law duties were
    codified in a variety of statutory regimes. In 1887, Congress
    passed the Interstate Commerce Act, 
    24 Stat. 379
    , which
    created the Interstate Commerce Commission (“ICC”) and
    codified the common carriage obligations of rail carriers. The
    Act’s “great purpose” was “to secure equality of rates as to all
    and to destroy favoritism, these last being accomplished by
    requiring the publication of tariffs and by prohibiting secret
    departures from such tariffs, and forbidding rebates,
    preferences and all other forms of undue discrimination.” New
    York, New Haven & Hartford R.R. v. ICC, 
    200 U.S. 361
    , 391
    (1906). Later, the Mann-Elkins Act of 1910, 
    36 Stat. 539
    ,
    brought the telecommunications industry under the purview
    of the Interstate Commerce Act and the ICC. Although the
    Communications Act of 1934 transferred regulatory authority
    over telecommunications from the ICC to the FCC, Title II’s
    language was “largely copied” from the Interstate Commerce
    Act and the concept of common carriage remained generally
    unchanged. See Global Crossing Telecom., Inc. v.
    Metrophones Telecom., Inc., 
    550 U.S. 45
    , 48–50 (2007).
    Of course, telecommunications carriers remain subject to
    common carrier regulation under Title II. See 
    47 U.S.C. § 153
    (51); 
    id.
     §§ 201 et seq. Over the years, however, the
    20
    Commission has relaxed the duties of common carriers in
    certain respects, and the line between common carriers and
    private carriers, i.e., entities that are not common carriers, has
    blurred. For instance, the Commission has ruled that tariff
    requirements, the centerpiece of the Interstate Commerce Act,
    are no longer applicable to certain common carrier services,
    thereby “dissolving what the Supreme Court described as the
    ‘indissoluble unity’ between [the] tariff-filing requirement
    and the prohibition against rate discrimination.” Orloff v.
    FCC, 
    352 F.3d 415
    , 418–19 (D.C. Cir. 2003) (quoting Texas
    & Pacific Railway v. Abilene Cotton Oil Co., 
    204 U.S. 426
    ,
    440 (1907)).
    The cases relied on by the parties here implicate the
    evolving meaning of common carriage and courts’ efforts to
    pin down the essence of common carriage in the midst of
    changing technology and the evolving regulatory landscape.
    For example, in NARUC I we distinguished between common
    and private carriers by observing that “[t]he common law
    requirement of holding oneself out to serve the public
    indiscriminately draws . . . a logical and sensible line between
    the two types of carriers.” 525 F.2d at 642. Consistent with
    this principle, we upheld the Commission’s classification of
    certain mobile-service providers as private carriers where the
    providers were able to “negotiate with and select future
    clients on a highly individualized basis.” Id. at 643. We
    elaborated on this distinction in NARUC II, concluding that
    “the primary sine qua non of common carrier status is a quasi-
    public character, which arises out of the undertaking ‘to carry
    for all people indifferently . . . .’” 
    533 F.2d at 608
     (quoting
    Semon v. Royal Indemnity Co., 
    279 F.2d 737
    , 739 (5th Cir.
    1960)). “That is to say,” we went on to explain, “a carrier will
    not be a common carrier where its practice is to make
    individualized decisions in particular cases whether and on
    21
    what terms to serve.” 
    Id.
     at 608–09. In still another case,
    Southwestern Bell Telephone Co. v. FCC, we put it this way:
    “[T]he indiscriminate offering of service on generally
    applicable terms . . . is the traditional mark of common carrier
    service.” 
    19 F.3d 1475
    , 1481 (D.C. Cir. 1994). Applying this
    standard, we determined that the services in question did not
    qualify as common carrier services because they were offered
    pursuant to “individually tailored arrangements.” 
    Id.
     Finally,
    in a decision that perhaps reflects the high-water mark of the
    broadening definition of common carriage, we held in Orloff
    v. FCC that Verizon did not run afoul of Title II’s common
    carriage requirements when it engaged in individualized
    negotiations. See 
    352 F.3d at
    419–21.
    Considering these cases together, we glean several basic
    principles. If a carrier is forced to offer service
    indiscriminately and on general terms, then that carrier is
    being relegated to common carrier status. See Southwestern
    Bell, 
    19 F.3d at 1481
    ; NARUC I, 525 F.2d at 642; NARUC II,
    
    533 F.2d at 608
    . But perhaps more importantly, the
    Commission has significant latitude to determine the bounds
    of common carriage in particular cases. Moreover, there is an
    important distinction between the question whether a given
    regulatory regime is consistent with common carrier or
    private carrier status, see, e.g., Orloff, 
    352 F.3d at
    419–21,
    and the Midwest Video II question whether that regime
    necessarily confers common carrier status, see Midwest Video
    II, 
    440 U.S. at
    700–02. Accordingly, even if a regulatory
    regime is not so distinct from common carriage as to render it
    inconsistent with common carrier status, that hardly means it
    is so fundamentally common carriage as to render it
    inconsistent with private carrier status. In other words,
    common carriage is not all or nothing—there is a gray area in
    which although a given regulation might be applied to
    22
    common carriers, the obligations imposed are not common
    carriage per se. It is in this realm—the space between per se
    common carriage and per se private carriage—that the
    Commission’s determination that a regulation does or does
    not confer common carrier status warrants deference. Cf. U.S.
    Telecom Association, 
    295 F.3d at
    1331–32 (deferring to
    Commission’s interpretation of “common carrier”). Such is
    the case with the data roaming rule.
    Comparing the data roaming rule to the public-access
    television rules struck down in Midwest Video II demonstrates
    the reasonableness of the Commission’s conclusion that the
    data roaming rule imposes obligations that differ materially
    from the kind of requirements that necessarily amount to
    common carriage. In deciding that the public-access rules
    “relegated cable systems, pro tanto, to common-carrier
    status,” Midwest Video II, 
    440 U.S. at
    700–01, the Court
    highlighted aspects of those rules that “plainly impose[d]
    common-carrier obligations on cable operators.” 
    Id. at 701
    .
    Specifically, the rules required cable systems “to hold out
    dedicated channels on a first-come, nondiscriminatory basis,”
    
    id.
     at 701–02, prohibited them from “determining or
    influencing the content of access programming,” 
    id. at 702
    ,
    and “delimit[ed] what [they could] charge for access and use
    of equipment.” 
    Id.
     The public-access rules thus obligated
    cable companies to set aside a dedicated space for members of
    the public to broadcast any message they might choose either
    at no cost or at a price dictated by the Commission. This, the
    Court held, was core common carriage. See 
    id.
     at 700–02.
    Midwest Video II clarified, though, that not every
    limitation on an entity’s discretion concerning with whom and
    how it will deal is necessarily common carriage. In both
    United States v. Midwest Video Corp. (Midwest Video I), 406
    
    23 U.S. 649
     (1972), and United States v. Southwestern Cable
    Co., 
    392 U.S. 157
     (1968), for example, the Supreme Court
    upheld rules that limited cable operators’ discretion to decide
    who could use their channels and what could be transmitted
    thereon. Midwest Video II expressly distinguished these cases.
    The origination rule upheld in Midwest Video I, the Court
    explained in Midwest Video II, “did not abrogate the cable
    operators’ control over the composition of their programming,
    as [did] the access rules.” Midwest Video II, 
    440 U.S. at 700
    .
    And the signal-carriage rules at issue in Southwestern Cable,
    the Court emphasized, “did not amount to a duty to hold out
    facilities indifferently for public use and thus did not compel
    cable operators to function as common carriers.” 
    Id.
     at 706
    n.16. By distinguishing the rules upheld in Midwest Video I
    and Southwestern Cable, Midwest Video II itself makes clear
    that there is room for permissible regulation of private carriers
    that shares some aspects of traditional common carrier
    obligations.
    The data roaming rule is much closer to the rules upheld
    in Midwest Video I and Southwestern Cable than the public-
    access rules set aside by Midwest Video II. Unlike the public-
    access rules, the data roaming rule leaves substantial room for
    individualized bargaining and discrimination in terms. The
    rule expressly permits providers to adapt roaming agreements
    to “individualized circumstances without having to hold
    themselves out to serve all comers indiscriminately on the
    same or standardized terms.” Data Roaming Order, 26
    F.C.C.R. at 5433 ¶ 45. Given this, like the rule at issue in
    Southwestern Cable and distinguished by Midwest Video II,
    the data roaming rule does “not amount to a duty to hold out
    facilities indifferently for public use.” Midwest Video II, 
    440 U.S. at
    706 n.16 (emphasis added).
    24
    True, providers must offer terms that are “commercially
    reasonable.” But the data roaming rule, unlike the voice
    roaming rule, imposes no presumption of reasonableness. And
    the “commercially reasonable” standard, at least as defined by
    the Commission, ensures providers more freedom from
    agency intervention than the “just and reasonable” standard
    applicable to common carriers. Cf. Morgan Stanley Capital
    Group, Inc. v. Public Utility District No. 1 of Snohomish
    County, 
    554 U.S. 527
    , 532 (2008) (explaining that courts
    “afford great deference” to FERC’s interpretation and
    application of “just and reasonable”). The rule itself actually
    spells out sixteen different factors plus a catch-all “other
    special or extenuating circumstances” factor that the
    Commission must take into account in evaluating whether a
    proffered roaming agreement is commercially reasonable. See
    Data Roaming Order, 26 F.C.C.R. at 5452–53 ¶ 86. The
    Commission has thus built into the “commercially
    reasonable” standard considerable flexibility for providers to
    respond to the competitive forces at play in the mobile-data
    market. Although the rule obligates Verizon to come to the
    table and offer a roaming agreement where technically
    feasible, the “commercially reasonable” standard largely
    leaves the terms of that agreement up for negotiation.
    Given the room left for individualized negotiation, the
    clear differences between the public-access rules in Midwest
    Video II and this rule, and the deference owed the
    Commission, we conclude that the data roaming rule does not
    contravene the statutory exclusion of mobile-internet
    providers from common carrier status. But in so doing, we
    take Verizon’s point that even if the rule sounds different
    from common carriage regulation, the more permissive
    language could, as applied, turn out to be no more than
    “smoke and mirrors.” See Oral Arg. Tr. 60. That is, Verizon
    25
    worries that despite the rule’s divergence from the classic
    vocabulary of common carriage, the Commission might
    nonetheless apply it in a manner that will effectively
    “relegate[ ]” mobile-data providers “to common-carrier
    status.” Midwest Video II, 
    440 U.S. at
    700–01. For instance,
    “commercially reasonable,” as applied by the Commission,
    may in practice turn out to be no different from “just and
    reasonable.”
    Verizon, however, has brought a facial challenge,
    meaning that we must uphold the rule unless “no set of
    circumstances exists” in which it can be lawfully applied. See
    Reno v. Flores, 
    507 U.S. 292
    , 301 (1993) (quoting United
    States v. Salerno, 
    481 U.S. 739
    , 745 (1987). As explained
    above, the rule, as interpreted by the Commission, to which
    we owe deference, see MCI Worldcom, 
    274 F.3d at 548
    , does
    not on its face impose a common carriage obligation. That
    said, should the Commission apply the data roaming rule so
    as to treat Verizon as a common carrier, Verizon is free to
    return to court with an “as applied” challenge. In
    implementing the rule and resolving disputes that arise in the
    negotiation of roaming agreements, the Commission would
    thus do well to ensure that the discretion carved out in the
    rule’s text remains carved out in fact.
    IV.
    Only a few smaller claims remain for resolution.
    Verizon argues that the data roaming rule results in an
    unconstitutional taking. In support, it cites Bell Atlantic
    Telephone Companies v. FCC, which barred the Commission
    from adopting rules that would effect unlawful takings in an
    “identifiable class” of applications absent a “clear warrant” in
    the statute. 
    24 F.3d 1441
    , 1444–46 (D.C. Cir. 1994). Verizon
    26
    contends that, like the rule at issue in Bell Atlantic, which
    gave third parties the right to physically co-locate equipment
    in local telephone companies’ offices, see 
    id.,
     the data
    roaming rule effects a physical taking in the form of the
    electrons that will occupy a host provider’s physical
    infrastructure during roaming. In the alternative, Verizon
    argues that the rule results in a regulatory taking insofar as it
    interferes with providers’ reasonable, investment-backed
    expectations that the Commission would maintain its
    deregulatory approach to mobile internet services.
    Because regulatory-taking claims “require[ ] ‘ad hoc,
    factual inquiries,’” we have followed “the Bell Atlantic
    approach to statutory interpretation” only in the context of per
    se physical takings. See Building Owners and Managers
    Association v. FCC, 
    254 F.3d 89
    , 99 (D.C. Cir. 2001)
    (quoting Penn Central Transportation Co. v. New York City,
    
    438 U.S. 104
    , 124 (1978)). And even if Verizon could show
    that the data roaming rule will effect physical takings in an
    “identifiable class” of applications, those takings would, as
    required by the rule, be compensated by a “commercially
    reasonable” payment. Because a “just[ly] compensat[ed]”
    taking is not unconstitutional, see U.S. Const. amend. V,
    nothing in the rule implicates the constitutional avoidance
    principle underlying Bell Atlantic.
    In addition to its takings argument, Verizon advances
    three “arbitrary and capricious”-style claims. First, taking a
    slightly different approach to its common carrier argument,
    see supra Part III, Verizon contends that the Commission’s
    conclusion that the data roaming rule imposed no common
    carrier obligation conflicts with its prior contrary
    classification of the voice roaming rule. Seeing no distinction
    between the two rules that could justify the agency’s
    27
    conclusion that the one imposes a common carrier obligation
    while the other does not, Verizon believes that the
    Commission acted arbitrarily and capriciously. In support, it
    highlights the similarity between the “commercially
    reasonable” terms required by the data roaming rule and the
    “reasonable and nondiscriminatory” terms required by the
    voice roaming rule, as well as the similarities between the
    dispute-resolution processes established by the two rules. In
    response, the Commission emphasizes essentially the same
    features of the data roaming rule that we have held make it
    lawful for the Commission to apply it to private carriers—for
    example, the absence of a non-discrimination mandate. See
    supra Part III.
    The two rules are undeniably similar. Indeed, as the data
    roaming rule’s history makes clear, the rule derived from and
    was intended to complement the voice roaming rule. Both
    rules relate to the same technological phenomenon,
    “roaming,” and both govern essentially the same entities,
    cellphone companies. But the same features of the data
    roaming rule that led us to credit the Commission’s
    determination that it imposes no common carriage obligation
    are largely absent from the voice roaming rule. Unlike the
    data roaming rule, the voice roaming rule incorporates Title
    II’s common carriage requirements, see 2007 Voice Roaming
    Order, 22 F.C.C.R. at 15818 ¶ 1, expressly forbids
    discrimination in terms, see id. at 15818 ¶ 1, 15826 ¶ 23,
    15832 ¶ 37, institutes a presumption that requests for roaming
    are reasonable so long as there is network compatibility, see
    id. at 15831 ¶ 33, and relies on the classic “just and
    reasonable” standard, id. at 15818 ¶ 1. These distinctions
    more than suffice to justify the Commission’s different
    classifications of the two rules.
    28
    Second, Verizon asserts that the Order is arbitrary and
    capricious because the few comments in the record from
    providers that had had trouble obtaining data-roaming
    agreements prior to the rule’s institution were insufficient to
    justify such sweeping regulatory reform. Indeed, Verizon
    maintains that the record demonstrates that carriers were
    entering into roaming arrangements voluntarily. Accordingly,
    Verizon maintains that the record evinced no “problem in
    need of industry-wide regulation” and that the Commission
    thus “lack[ed] a rational basis” for promulgating the rule.
    Verizon’s Br. 57–58.
    The record refutes this argument. The Commission twice
    requested comment on the need for a data roaming rule, and
    every commenter besides Verizon and AT&T thought such a
    rule was necessary. See Data Roaming Order, 26 F.C.C.R. at
    5416–18 ¶¶ 11–12. Moreover, the Commission expressly
    considered and rejected “arguments by AT&T and Verizon
    . . . that a data roaming rule [was] unnecessary because data
    roaming agreements [were] occurring without regulation,”
    finding instead that “providers ha[d] encountered significant
    difficulties obtaining data roaming arrangements on advanced
    ‘3G’ data networks, particularly from the major nationwide
    providers.” Id. at 5424 ¶ 24. In fact, the Order cites comments
    revealing that carriers were having trouble reaching roaming
    agreements with Verizon in particular. See id. at 5425–26
    ¶ 26. To be sure, the record contains contrary evidence
    proffered by Verizon and AT&T. But the Commission
    squarely addressed that evidence, and the data roaming rule
    reflects a viable policy choice justified by substantial record
    evidence. Cf. Motor Vehicle Manufacturers Association of the
    United States v. State Farm Mutual Automobile Insurance
    Co., 
    463 U.S. 29
    , 43 (1983) (The APA requires only that the
    agency “examine the relevant data and articulate a satisfactory
    29
    explanation for its action,” and “a court is not to substitute its
    judgment for that of the agency.”).
    Finally, Verizon argues that the Commission made a
    logical error when it weighed the costs of the data roaming
    rule against its benefits. Specifically, Verizon sees a conflict
    between (1) the Commission’s argument that the data roaming
    rule would serve the public interest, and (2) its statement that,
    in light of the “high cost of roaming,” “providers are unlikely
    to rely on roaming arrangements in place of network
    deployment.” Data Roaming Order, 26 F.C.C.R. at 5423 ¶ 21.
    The Commission’s attempt to downplay the possibility that
    the rule will discourage investment in network infrastructure
    on the ground that providers will rarely invoke it, Verizon
    contends, “is tantamount to saying the saving grace of the rule
    is that it will not entail costs if it is not used.” Business
    Roundtable v. SEC, 
    647 F.3d 1144
    , 1156 (D.C. Cir. 2011).
    Verizon oversimplifies the Commission’s reasoning and
    omits key language in the Order, creating a contradiction
    where none exists. As one of several arguments against
    AT&T’s and Verizon’s assertions that the rule would remove
    incentives for investment, the Order states that “providers
    [would be] unlikely to rely on roaming arrangements in place
    of network deployment as the primary source of their service
    provision.” Data Roaming Order, 26 F.C.C.R. at 5423 ¶ 21
    (emphasis added). This hardly amounts to an assertion that
    providers will decline to rely on the rule at all; rather, the
    Order merely asserts that roaming will not displace network
    development as the “primary” means of serving subscribers.
    Indeed, the Commission carefully explained that roaming
    would assist new entrants into various markets and that those
    new entrants could then amass a customer base sufficient to
    enable them to develop their own infrastructure. See 
    id.
     at
    30
    5421–23 ¶¶ 18–22. Verizon’s myopic focus on part of a
    longer sentence plucked from a more extensive analysis
    obscures what the Order makes clear: that the Commission
    performed a thoughtful and nuanced balance of the costs and
    benefits of the data roaming rule.
    V.
    For the foregoing reasons, we reject Verizon’s challenge
    to the data roaming rule.
    So ordered.
    

Document Info

Docket Number: 11-1135, 11-1136

Citation Numbers: 403 U.S. App. D.C. 105, 700 F.3d 534

Judges: Garland, Griffith, Tatel

Filed Date: 12/4/2012

Precedential Status: Precedential

Modified Date: 8/5/2023

Authorities (34)

Mary Hicks Semon v. Royal Indemnity Company , 279 F.2d 737 ( 1960 )

Celtronix Telemetry, Inc. v. Federal Communications ... , 272 F.3d 585 ( 2001 )

Commty TV Inc v. FCC , 216 F.3d 1133 ( 2000 )

Bldg Owners Mgr Assn v. FCC , 254 F.3d 89 ( 2001 )

oklahoma-natural-gas-company-a-division-of-oneok-inc-v-federal-energy , 28 F.3d 1281 ( 1994 )

Orloff v. Federal Communications Commission , 352 F.3d 415 ( 2003 )

MCI WrldCom Ntwrk v. FCC , 274 F.3d 542 ( 2001 )

Transmission Agency v. Federal Energy Regulatory Commission , 495 F.3d 663 ( 2007 )

National Mining Association v. U.S. Army Corps of Engineers , 145 F.3d 1399 ( 1998 )

US Telecom Assn v. FCC , 295 F.3d 1326 ( 2002 )

United States v. The Honorable June L. Green, (Two Cases). ... , 499 F.2d 538 ( 1974 )

national-association-of-regulatory-utility-commissioners-v-federal , 533 F.2d 601 ( 1976 )

southwestern-bell-telephone-company-v-federal-communications-commission , 19 F.3d 1475 ( 1994 )

Comcast Corp. v. Federal Communications Commission , 600 F.3d 642 ( 2010 )

Federal Communications Commission v. Sanders Bros. Radio ... , 60 S. Ct. 693 ( 1940 )

United States v. Salerno , 107 S. Ct. 2095 ( 1987 )

Interstate Com. Commiss. v. B. & O. RAILROAD , 12 S. Ct. 844 ( 1892 )

Texas & Pacific Railway Co. v. Abilene Cotton Oil Co. , 27 S. Ct. 350 ( 1907 )

Bell Atlantic Telephone Companies v. Federal Communications ... , 24 F.3d 1441 ( 1994 )

Motion Picture Ass'n of America, Inc. v. Federal ... , 309 F.3d 796 ( 2002 )

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