FCC says that its in charge of unlicensed spectrum (PDF): Today's ruling is a crushing defeat for the contradictory and shifting statements made over the last two years by Massport, the operators of Boston-Logan airport, in their attempt to control the use of Wi-Fi in their facility. Continental wanted to offer free Wi-Fi using their own equipment in their membership lounge. Massport tried to prevent this, but it's been clear that the FCC's broad and clear statements over the last few years--including this one in particular back in July 2004--said that only the FCC may control the unlicensed spectrum and that landlords have no rights in free airspace.
The FCC reiterated that language today: "Restrictions prohibited by the OTARD [over-the-air reception devices] rules include lease provisions (as is the situation here), as well as restrictions imposed by state or local laws or regulations, private covenants, contract provisions, or homeowner’s association rules." The order notes that this is the first time a Part 15 device has been involved in the application of the OTARD rules, so this decision has remarkably broad standing in clarifying any future disputes. (Part 15 governs most consumer and commercial devices used without a license in the 900 MHz, 2.4 GHz, and 5 GHz bands, although there devices operating under other rules and under licenses in those bands as well.)
The Continental petition to get a ruling against Massport received 2,300 comments, 2000 of which were "brief, single-paragraph responses" from individuals, "many of whom identify themselves as frequent passengers of Continental." A number of large organizations filed comments in favor of Continental, including T-Mobile (long-time operator of airport-lounge Wi-Fi), the Consumer Electronics Association, and six public utility commissioners. The FCC notes that the Airports Council International as the only organization supporting Massport, though individuals did send positive comments as well.
Paragraph 12 of the order says Massport's lease restrictions are overly restrictive, without even addressing the specific installation. Paragraph 15 dismisses a specious reading of the "user" of the antenna, in which Massport had tried to state that end-users were the ones who would have to be leaseholders for OTARD rules to apply. Paragraph 17 dismisses Massport's specious reading of a "commercial signal." Paragraph 18 dismisses Massport's specious reading of fixed wireless signals. Paragraph 19 says that Massport misunderstands the FCC entirely in regards to OTARD rules. That, in fact, the rules exist to promote competition in a manner that Massport would like to suppress.
Paragraphs 23 and 24 note that Massport's lease contains unenforceable terms. Paragraph 25 is precious; read it, along with paragraph 26. In part: "The OTARD rules were adopted to enable access to competitive services – a delay of nine months and an offer triggered only by an antenna user pursuing its legal remedies countervails the overarching policies of the OTARD rules and existing legal precedent, amounts to an effective denial of competitive access, and is thus an unreasonable impairment of antenna use for the purposes of OTARD."
On the issue of safety, where Massport maintains that public safety officers, such as the state police, will rely on Wi-Fi, the FCC delivers this body blow starting in Paragraph 28: "Massport misreads the purpose of the safety exception in our rules, and misconstrues the applicable regulatory framework governing the operation of Part 15 devices, such as Continental’s Wi-Fi system, the airport Wi-Fi backbone, and Wi-Fi systems operated by other airlines at Logan Airport....The safety exception addresses potential dangers to the physical safety and health of the public and not interference to other radio device users." Massport, is down for the count, struggling to get off the mat.
Citing law going to back to the founding of the FCC, the order notes, "the safety exception concerns health and physical safety and is simply inapplicable to complaints of potential RF interference with other radio devices...Even if the OTARD safety exception did apply to RF interference issues, the safety exception would still not apply here because the Wi-Fi device that Continental is using in the President’s Club operates as permitted under Part 15 of our rules." That's gotta hurt.
The final chunk, starting in Paragraph 32, dismisses Massport's attempt to get an exemption because the OTARD rules haven't been enforced in government buildings. The FCC says that a house built upon sand cannot stand. Without providing specific reasons for recourse, the order won't allow an exemption because none is required. There now follows a more intricate set of issues about whether the FCC can apply its OTARD rules, here's all you need to know (Paragraph 49): "In sum, no arguments that Massport has made give us reason to change our earlier conclusions that the Commission has statutory authority in these circumstances." There's more about this, too, but of only academic interest.
This ruling may have little effect in airports outside of Boston-Logan, because I am unaware of any other situation in which the airport authority set up an adversarial approach to the extend of spending what must have been hundreds of thousands of dollars pursuing action on the public's dime against privately owner airlines, which are also the airport authority's tenants. In the airports I know something about, the development of a comprehensive Wi-Fi system was undertaken with the involvement of airlines and other tenants to provide the right services in the right places. In some airports, different entities, including airlines, run their own distinct systems without any conflict that's been documented.
More generally, however, the broad reaffirmation of these rules should provide a way to avoid petitioning the FCC and litigating against landlords (or tenants) when unlicensed airwaves are involved.
Update: Oh my goodness, read what the Associated Press heard from Massport: "A spokeswoman for MassPort said the airport had not decided if it would appeal the ruling. 'We're very disappointed in the ruling, but reviewing it carefully and weighing our options moving forward,' said spokeswoman Danny Levy."
Yes, the options include throwing oneself on the floor, bursting into tears, pounding the ground, and shouting, "No! No! No! No! No!"; or sucking it up, guys, rather than spend millions of dollars of taxpayer money and potentially several years appealing a foregone conclusion.
And I may be wrong on the impact. The AP quotes the trade group for major airlines as stating that other airlines might now choose to operate their own Wi-Fi networks in airports.