Big Win For Community Wireless At FCC

The FCC released its long awaited decision resolving Continental Airline’s complaint that Massport cannot order it to shut down its free wifi access for Continental customers.

While supremely important for its ultimate holding, the case contains many positive and useful determinations for unlicensed generally. It also contains two outstanding concurring statementsfrom the Democratic Commissioners. You can see Copps’ concurence here, and Adelstein’s here.

That’s also very good news. Almost a year ago, I worried that, with the departure of Michael Powell and Ed Thomas from the FCC, and the departure of Michael Gallagher from NTIA no one would champion the cause of unlicensed spectrum. But as Copps and Adelstein have shown, both in this decision and in their actions in last month’s item on the broadcast white spaces, Copps and Adelstein ‘get it’ on unlicensed spectrum and why it is so important.

Further analysis below . . .

To refresh everyone’s memory, this all began some years ago when airports and airlines began tussling over wireless systems that use unlicensed spectrum (which, for convenience sake here, I’ll call “wifi,” even though we all know it’s more than that). A number of airports wanted to limit who could use wireless and exercise exclusive control over how folks in the airport use wireless networks. Meanwhile, the airlines wanted to standardize wireless networks for baggage handling and identification, have the flexibility to offer wifi to travelers as an amenity, etc.

And it wasn’t just airports. Other landlords wanted to be able to control the proliferation of access points and wireless networks as well. So the FCC issued a declaratory ruling that landlords (such as airports) cannot prevent their tenants from using wireless devices and wireless services of their choice, provided they use antennas smaller than one meter in length/diameter and that placement of the antenna does not create any risk to health and safety.

The FCC had actually created these rules, called the “Over The Air Receiver Device” (or “OTARD”) rules many years before so that people in apartment buildings or condos could subscribe to satellite TV providers like DIRECTV. In 2000 (reaffirmed in 2004) the FCC extended the OTARD rules from DBS receiver dishes to licensed transmitters. So extending the rules again to cover unlicensed transmitter/receivers was not a huge stretch. Problem solved, right?

But Massport, unable to believe that a federal law actually applied to them, continue to demand that Continental stop offering its own complimentary wifi access point to Continental passengers. Continental refused, choosing instead to ask the FCC for a declaratory ruling that when it said “landlord’s can’t mess with a tenant’s choice of wireless equipment and wireless provider,” this applied as much to Massport as it did to any other landlord. Massport argued, among other things, that the FCC’s authority did not apply to a state entity, that the FCC did not have authority to apply OTARD to unlicensed wireless devices, and that Massport needed to control the use of wireless devices in the airport to protect health and safety.

FCC’s Key Holdings
Here are, in my opinion, the key holdings of today’s decision:

1) OTARD Definitely Applies to Part 15 “Unlicensed” Devices. The 2004 declaratory ruling applying OTARD to Part 15 devices came not from the full Commission, but from the relevant Commission Bureau, the Office of Engineering and Technology (OET). While legally binding under the FCC’s rules delegating authority for certain types of decisions to the Bureau level, the full Commission could have reversed the Bureau if it had wanted to do so. As of today, it is now the official position of the full Commission that OTARD applies to Part 15 transceivers.

2) The FCC provided clarification of the “public safety exception” and made important statements about the distinction between unlicensed and licensed spectrum. Massport claimed that because it intends to run public safety applications over its unlicensed networks, it cannot tolerate any interference from other unlicensed networks. Accordingly, the “public safety” exception to OTARD should apply.

The FCC rejected this argument for several reasons. First, the FCC found that the “public safety” exception only applied to physical safety issues from positioning the physical antenna. For example, you can’t put your satellite receiver dish on your emergency exit door, even if that is the only place under your control with the needed clear exposure of the southern sky. So whether Continental’s wifi network interfered with Massport’s wifi backbone did not matter for the public safety exception.

More importantly, however, the FCC went on to discuss the critical difference between Part 15 “unlicensed spectrum” and exclusively licensed spectrum. This is at Par. 30 of the order, for those of you following at home.

“Part 15 specifies power levels, frequency bands, and conditions under which devices may transmit RF signals without requiring a license.” says the FCC. And, most importantly here, “Part 15 devices do not receive interference protection from other Part 15 devices.” Because of this, “Massport has no right to operate the airport Wi-Fi backbone free from interference from other Part 15 devices, including Continental’s Wi-Fi device…Although Logan airport may desire to use the airport Wi-Fi backbone for public safety communications at some future time, this fact has no bearing on our present inquiry. The type of traffic carried by the backbone does not change the application of Part 15 of our rules. Users who believe they must have interference-free communication should pursue the exclusive-use options under our licensed service models instead of relying on Part 15 devices.” (emphasis added)

Why do I think this is so important? Because, as time goes on, and we get various WISPs and businesses and so forth using unlicensed spectrum, I keep hearing all kinds of whining about how we need to make unlicensed more like licensed spectrum. You know, secure, dependable, and damned expensive to operate.

Well ya know what? Tough nuggies! If you don’t feel comfortable putting your public safety communication or financial info or whatever on unlicensed spectrum because you think licensed spectrum is more secure or more stable or whatever, then DON’T USE UNLICENSED SPECTRUM. Use licensed spectrum.

And, at the same time, don’t think that just because you’re uncomfortable using unlicensed for these things, that the rest of us shouldn’t get our chance to use it. Because there are a lot of people who think unlicensed — especially because of its advantages of flexibility, user autonomy, and price — is a the best idea to come along since the last non-proprietary open standard came along. Anybody remember when telcos and other companies used to “secure” communications said in the early 1990s that this “best efforts” internet stuff would never fly? Or that open source software must be less stable and less secure than proprietary software? “Keep the bike shop Orville, this unlicensed spectrum thing can’t possibly compete against safe, secure wireless.” Yeah right.

But by the same token, if you do decide to take the plunge and enjoy all the benefits of unlicensed spectrum, don’t come whining that you want all the hand holding and bells and whistles of licensed spectrum. You make your choice and decide which type of service suits you better. Don’t try to change the rules for everyone else just because you want to run certain kinds of applications over unlicensed spectrum but wish it were more like licensed spectrum.

O.K., I’m off the hobby horse now. Moving on to the last critical holding. I must warn you, however, that this last holding is so legally picky in scope that non-lawyers may go mad — MAD I TELL YOU — from the insane boredom of trying to figure this out and why it matters. Feel free to scroll past to my discussion of the Copps and Adelstein statements.

3) The FCC explicitly held that it’s Section 303 licensing authority applies to ‘unlicensed’ spectrum. The Commission has long had a schizoid attitude about whether it regulates Part 15 under its Section 302 authority to license equipment, or whether Part 15 is a subspecies of license under Section 301, or whether it is so low power that Section 301’s requirement that the Commission license all transmitters simply doesn’t apply.

Par. 38 explicitly invokes the Commission’s authority under Section 303(d) and the “broad definitions” of radio stations and radio communications. By this logic, Part 15 devices are actually a subspecies of license, not an equipment certification or something outside the statutory definition.

Why does this matter? Because if Part 15 devices are “really” a form of licensed device, rather than a form of equipment certification or something else, then the FCC can — if it wants — put them on equal footing with other licensed services. If Part 15 devices are, at least for now, third class citizens at the FCC, that is only a mater of policy rather than law. The FCC could, on some future occasion in the exercise of its statutory authority, chose to change this policy.

Of course, the FCC does no such thing here. As I just got through arguing above, the FCC makes a clear distinction between licensed and unlicensed — and for good reason. But as the FCC wrestles with issues such as whether to permit unlicensed operation in the broadcast “white spaces,” it constantly faces issues of how to balance the interests of “licensed users” with “unlicensed users.” If, as a statutory matter, the two services stand on equal footing, the FCC has much greater discretion to set the balance between users as a matter of policy.

O.K., boring legal part’s over.

Copps and Adelstein Concurring Statements
Commissioner Copps and Commissioner Adelstein both issued strong statements in support of unlicensed spectrum and community wireless. While both observed that if Massport could have shown any possible interference with licensed public safety operations, it would have been a different story, both stressed the importance of preserving the freedom of open spectrum to promoting community wireless broadband.

Copps, in language that echoes sentiments that I have written here many times, wrote this eloquent paragraph that bears repeating again and again.

“Wi-Fi is one of the Commission’s greatest wireless success stories. The genius of this unlicensed technology is that no central authority controls or manages how and where these networks spring up. Instead, any private or commercial operator who sees a need for a local Wi-Fi network may build and operate one. The price that Wi-Fi users pay for this freedom is that they, like all Part 15 users, must accept interference from other devices in the unlicensed bands. But the nation’s half-decade of experience with this new technology has made it quite plain that this trade-off is more than worth it. When it comes to providing broadband over the unlicensed bands, the airwaves are truly the people’s airwaves. So while I certainly support strong licensing regulation in some contexts, I think it is equally important that we leave other portions of the spectrum open to unlicensed uses.”
(emphasis in original)

Let me separate out the key sentence again. I want someone to put it on a T-Shirt for me so I have something to wear to Free Press’ Media Reform Conference in January.
“When it comes to providing broadband over the unlicensed bands, the airwaves are truly the people’s airwaves.” — Michael Copps, FCC Commissioner.

Adelstein, also no slouch in either rhetoric or enthusiasm for community wireless, had this to say:

“Today we strike a victory for the WiFi revolution in the cradle of the American Revolution. The WiFi movement embodies the spirit of American freedom, and in our action we say ‘don’t tread on me.’ The movement has been one of the great telecommunications success stories because it enables American consumers and businesses to offer and receive broadband services at the most local levels – at any time, in any place.”

And again, for those looking for something to give me for Chanukah, I’d love a T-Shirt or mug or something that says:

“The WiFi movement embodies the spirit of American freedom…The movement has been one of the great telecommunications success stories because it enables American consumers and businesses to offer and receive broadband services at the most local levels – at any time, in any place.”
— Jonathon Adelstein, FCC Commissioner.

So what happens next? Well, according to this news story, Massport says it is “reviewing its options.” But Massport really only has three options:

1) It can give up.

2) It can ask the FCC to reconsider its decision. This is called a “Petition for Reconsideration.” But Massport would have to come up with some new reason to explain why the FCC got it wrong in this Order that it didn’t include in the last year or so this has been pending in front of the FCC.

3) Massport can appeal to a federal court and ask the court to reverse the FCC.

I think the odds of the FCC reversing itself on recon are slim to none. I also think that the federal courts are unlikely to reverse the FCC on this one. It’s a comprehensive and tight legal decision (for a change!) and the D.C. Circuit affirmed the FCC’s authority in this area when the FCC extended the OTARD rules to transceivers using licensed spectrum in a case called Building Owners and Managers Assoc. International v. FCC, 254 F.3d 89 (D.C. Cir. 2001). But Massport may hope to get an Appeals Court panel in the First Circuit (which covers Boston) that will rule in its favor.

Also, Massport is a creature of the state of Massachuset. As I observed in my capacity as MAP senior VP, a decision in favor of Massport could screw up Boston’s efforts to deploy muni wifi. so while Massport may want to push ahead, other elements of the government of the State of Massachuset may feel differently.

Stay tuned . . .