Continental Airlines filed a petition with the FCC arguing that Massport has no authority to demand that the airline turn off its lounge Wi-Fi: The FCC has already issued clarification (June 2004) that unlicensed spectrum rules are its exclusive domain of enforcement, and that landlords and others may not control the airwaves. I have heard since then that many landlords have rewritten leases to give them this explicit control; these provisions probably aren't enforceable.

In Massport's case, they hired a vendor who installed Wi-Fi throughout the airport's terminals. This vendor was guaranteed a certain level of exclusivity in exchange for reselling access for operational and public purposes. Continental wants to continue to offer free Wi-Fi and operational Wi-Fi in its central area that it leases from Massport. Massport suddenly raised a safety objection, according to the petition, to trigger a provision in the FCC rules that might allow the FCC's general guidelines to be overruled. (Continental started offering their Wi-Fi immediately after the FCC's initial clarification a year ago.)

The FCC is asking for comments. I expect that it will come down hard on Continental's side because otherwise it would allow individuals, corporations, and municipal entities the right to control federal telecommunications policy.

(Now how is this different from municipal broadband? In this case, Massport is attempting to prevent competitive use of open airwaves usurping a more general principle that allows at a national level this competitive, but non-interferring use. Massport has no rights above Continental and vice versa. In the case of municipal broadband, municipalities are relying on federal law that allows them--so far--to offer services without defranchising other competitors, or in cases in which there is no other service. Some would argue that offering municipal broadband through a vendor that has special access to municipal facilities, like utility poles and buildings, is a kind of franchise.)