Tales of the Sausage Factory: UTX, OTARD, UH-OH!

As readers of Slashdot may have seen, The University of Texas at Dallas has prohibitted students in certain dorms from setting up wireless access points. If you read the policy, you will find out that the University is not simply amending its acceptable use policy (AUP), it prohibits setting up access points using residential DSL or cable.

Rather than break into the raging debate in the comments on how this policy meshes (as it were) with the FCC’s recent ruling prohibiting landlords from mandating such things, I’ll use Wetmachine to say what I want (but feel free to refer anyone from Slashdot over here to our humble corner of the internet if they would like to hear from a lawyer who dabbles in such things).

Here’s the basic facts. On June 24, 2004, the FCC’s Office of Engineering and Technology (OET) — the Office that handles spectrum and engineering issues that aren’t related to cell phones (which are handled by the Wireless Bureau) or television, radio or DBS (which are handled by the Media Bureau) issued a Public Notice clarifying application of something called the “Over The Air Reception Devices” (OTARD) rules to unlicensed devices.

To cut through the legal and technical jargon, the OTARD rules work like this: “the FCC is the only body authorized to make decisions about management of interference issues. We declare that consumers have the right to attach any antennas we’ve authoirized to any device we’ve authorized to receive such antennas under the rules we have set down. No one else may interfere with this. Not even landlords.”

The FCC created the OTARD rules to promote satellite television (also called DBS for “direct broadcast satellite” service). Cable companies were persuading landlords to prohibit tenants from mounting DBS antennas on their balconies, and condo associations were prohibitting people from mounting ugly dishes on their roof tops. So the FCC, in one of its rare pro-competition moments, created the OTARD rules. The OTARD rules prohibit any landlord or condo association or anyone else from preventing a consumer from operating a device approved by the FCC or attaching an antenna approved by the FCC.

Flash forward to today. Numerous airlines are puting in wireless networks using unlicensed spectrum. They want to run their own networks accross their entire set of operations for things like baggage check, networking, and offering free wifi to prefered customers in the “Captain’s Lounge” or whatever they call it. At the same time, the airports want to have one network for the entire airport — both to minimize interference issues and because airports cut deals with companies like Weyport which give the airport a cut of the revenue. If airlines can offer free wifi, who will pay $10 for access?

So a number of airports decreed that the airlines could not have their own networks, the airlines petitioned the FCC to apply OTARD to unlicensed devices. On June 24, OET issued a Public Notice doing just that.

Now we have the University of Texas at Dallas situation. If you read the policy, UTX is prohibitting students from ordering DSL or cable modems and attaching an access point. An exception is made for 802.11a and certain frequency assignemnts.

This appears to run contrary to the OTARD ruling. The university almost certainly has the authority to prohibit attachements to its own network as a condition of use. (I say “almost” because if the University is deemed to be providing a Title II Telephony service rather than a Title I information service, and is deemed the dominant carrier in its region, it might be subject to the same rules that require telephone systems to allow you to attach a modem. But that is way too complicated to get into here.)

Anyway, even if the University has authority to prohibit a direct attachment to the network as part of its AUP, it cannot — under the OTARD ruling — prevent university students from bringing in their own network. Indeed, UTX is doing exactly the sort of thing that the FCC prohibits- acting as a “spectrum coordinator” and deciding that an application the FCC has approved causes unacceptable interference and therefore prohibiting it.

But is this the end of the matter? As usual in law, the issue is complicated. A university dorm resident does not exist in a landlord-tenant relationship. A university may freely enter a dorm room and search it for drugs — something a landlord could never do to a tenant. If you get expelled from the university, you lose your “lease” on the dorm. It seems to me that the university can argue that while the FCC has authority over spectrum, colleges and universities have exercised control over student conduct in ways that would otherwise be illegally intrusive. Deciding how students will access the Internet and whether they can or cannot set up wireless access nodes is arguably within the scope of traditional university oversight of student behavior.

Interestingly enough, the university may be on safer ground prohibiting students from getting outside phone service or cable service. The FCC has refused to preempt landlord authority to make exclusive deals with telephone or cable providers. So the University could simply take control of all telephony and cable in the dorm and make all students go through them.

The real solution to the problem is not more restrictions on students. It is more spectrum for unlicensed and allowing smarter radios. Adding additional channels, say from the 3650-3700 band or from the broadcast band, would alleviate the crowding quite nicely. Having smarter radios that avoided interfering with each other would have a similar effect.

So rather than fight each other, I recommend that UTX and the student residents of the relevant dorm join me in petitioning the FCC to make more spectrum available to the public. You can start by following the link below to the FCC’s website. The docket number for the 3650-3700 proceeding is 04-151. The docket number for the unlicensed in the broadcast bands is 04-181. The docket number for cognative radios proceeding is 03-108. Simply enter the docket number for the relevant proceeding at the top and tell the FCC what you need.

If you want to change the world, rather than just bitch about it, (better yet, if you want to change the world by bitching about it) click here.

Stay tuned . . .


  1. Harold,

    Expect draft of my article in about a week.

    In the meantime I’ll talk to Gary this week about setting up a Wetmachine/Sausage Alerts news service and also an RSS feed.

    As my friend says, “stay tuned. . .”

  2. One of the main issues with this is who owns the apartments. I am a student at UTD and I can tell you that they are NOT owned by the University, but by a private company who has its own contract with UTD to build on their land. The leases we have signed say nothing of prohibiting our own wireless access points. The wireless service Waterview Park offers is free, however, the only reason we pay for our own internet is because the service they provide is unreliable and, at best, mediocre. Here is a link to a website where you can hear what the residents of the apartments have to say: http://www.waterviewsux.com

  3. I agree with the premise of your article; however, my guess will be the university will come out on top on this one unless a student uses their own network, i.e. purchases another service such as DSL or ISDN.

    The university will have the right to maintain their network and specifically protect their assets from unauthorized accesses by rogue wireless LAN devices. It’s not a matter of whether or not they are a carrier — clearly they are not and as such they will not fall under the admninistrative procedures typically the CLECs and ILECs are bound by.

    My guess (at this point it is just that) is the university will successfully keep people from placing wireless LAN devices on their network, but will not be able to prevent a customer of another service from using their WLAN.

  4. WiFi and similar technologies do not “scale” well for high-density areas like dorms or apartments. Some “parental control” is necessary to resolve conflicts, even in non-hostile situations. If you have hostile “phishing” etc, the problem is much worse. Allocating more bandwidth will kick the can down the road, but not address the fundamental issue.

    Licensing is the traditional way to solve such problems. The trick is to find a way to regulate without adding undue cost or delay. A required self-registration of your network with a web database might be part of the answer. The problem is similar to anti-spam authentication of email.

    The free market approach of today’s FCC guarantees only the law of the jungle.

  5. Martin: You touch on one of the critical debates regarding the future of unlicensed access. There are those who argue that the “Darwinian pressures” of the unlicensed environment will encourage tehnical solutions without the need for mandated cooperation. Others argue that additional spectrum will increase the space available exponentially, thus relieving crowding and eliminating the need for mandatory cooperative protocols. Still others argue that the FCC should require that unlicensed devices — particularly in any new spectrum, should be required to “play nice” and cooperate as a condition of certification for use.

    The downside with mandates is that it limits flexibility and raises the spectre of “government control” to many policy makers. In Washington, a big attraction of unlicensed is that it is deregulatory and moves away from government regulation. This argument is harder to make if the government sets certain standards — although I would argue that incorporation of minimal cooperative requirements is a lot less regulatory than a system where a single licensee gets to make the rules.

    Some folks, notably Lawrence Lessig, have advocated setting up competing regulatory regimes by band, to test what rules set will generate the best results. For myself, I am still inclined to trust the “Darwinian” approach and give the broadest scope for people to find solutions rather than try to regulate bad behavior — although I would prohibit devices explicitly designed to “screw your neighbor” as violating Sec. 333 of the Communications Act.

  6. UTD as the ISP has the right to refuse to sell their DSL service to anyone who rebroadcasts the service beyond the installation area. If you read the OTARD rules they only talk about receiving signal. UTD is talking about rebroadcasting their service.

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