RTG’s General Counsel, Carri Bennet, and Wireless Technical Advisor, Mehran Nazari, met with FCC Commissioner Clyburn’s wireless legal advisor to discuss whether priority access should be permissible in the context of data roaming. RTG expressed concern that AT&T is suggesting that due to potential congestion on its network, it should be allowed to treat its roaming partners’ customers differently than it treats its own customers by placing the roaming partners’ customers on its 2G or 2.5G network rather than its 3G network when the 3G network reaches capacity. While RTG does not oppose network management practices that treat different data applications differently based on the type of application, it does oppose any type of priority access that would treat customers of different carriers differently, specifically, by allowing AT&T to give its own customer preferential treatment over a roaming partners’ customer. Discrimination based on who the customer’s home carrier is should not be tolerated because it is anticompetitive. A roaming partner’s customer who has a bad experience on AT&T’s network is not going to associate the bad experience with AT&T; rather the customer will associate it with its home carrier. If the customer continues to experience the harmful impact of such discriminatory treatment, the customer will likely seek to change carriers. By prioritizing its own customers over those of its roaming partners, AT&T will be in a position to harm the wireless carriers with whom it competes on the retail side.

RTG reported that collectively, its members have not been able to enter into 3G data roaming agreements with AT&T. RTG also noted that on the wholesale side, when and if AT&T enters into 3G data roaming agreements, AT&T would presumably be paid a fair price or even a premium for the use of its network by the competitive wireless carrier so that such carrier’s customers may have access to AT&T’s data network. In bargaining for 3G data roaming, the wireless carrier should not have to settle for being pushed to a 2G or 2.5G network where speeds are slower and unable to support many of the applications that are only available on a 3G network unless AT&T is also denying its own customers 3G service.

RTG also questioned whether AT&T’s capacity issues are the result of poor network planning. For example, RTG noted that it is not familiar with AT&T having ceased the sale of the iPhone or denied access to its network to iPhone customers because of capacity concerns.

RTG also advised that despite AT&T’s public assertions to the contrary, AT&T has boldly stated to RTG members that it will not enter into 3G data roaming agreements with rural carriers. RTG suggested that the FCC request that AT&T provide a list of all carriers with whom AT&T has entered into a domestic 3G data roaming agreement so that the record can be set straight.

A copy of ex parte filing may be found here.