Sadly, the latest fuss about wifi and airports doesn’t come from an Apple update. As some of you may have read, Logan airport wants to stop Continetal from running its own wifi network. Instead, it wants Continental to pay to use Logan’s wifi network. While this might look like just a local fight, it has big implications for wireless ISPs, community wireless networks, and municipal wireless networks.
The FCC has put out a public notice on the matter. So it looks like I have a new set of comments to file when I get back from vacation (sigh).
First, I’m annoyed that Continental’s lawyers can’t tell the difference between the Communications Act of 1934 and the Telecommunications Act of 1996. Yeah, yeah, aren’t I the snarky lawyer geek. But come on guys, do you’re flippin’ research! And Massport’s lawyers citing the FCC’s FAQ as if it were a legal document? Puh-leeeaaze!!!!
With that off my chest, on to the main event. Last year, I wrote about how a 2004 decision by the FCC Office of Engineering and Technology was causing heartburn for colleges trying to control wireless access. Now the same issue has come up again, with Massport (the owner of Logan) trying to keep anyone else from offering a wireless network. But while I had sympathy for colleges worried about slow networks and secondary liability for file sharing, Massport appears motivated only by money — oh, and public safety too!
The facts: Ever since the 1980s, people have tried to compete with cable television by offering a wireless video service like satellite television (which worked) and “wireless cable” (which didn’t, but that’s a whole ‘nuther story). The cable companies, always welcoming of competition, entered into exclusive deals with apartment building owners and condo associations to provide exclusive service and got the landlords and condo and home owner associations to forbid anyone from setting up a receiver dish or other antenna on their property.
It did not take a genius to see that competitors to cable would never get off the ground if people couldn’t set up receivers to receive the competition. So the FCC created something called the “Over The Air Receiver Device” (“OTARD”) Rule. OTARD works like this:
1) Under the Communications Act of 1934, we, the FCC have sole jurisdiction over all radio interference matters.
2) No third party can interfere with any FCC decision on radio interference or decide to set up different standards than the FCC.
3) We decide that anybody who wants to set up an antenna of modest size (about 1 meter in height and breadth — like a big satellite dish or a TV antenna) can do so, and landlords and condos cannot make lease provisions that say otherwise.
4) To condo authorities and home owner associations: We know they’re ugly. We don’t care.
Now fast forward to 2004. We have WiFi networks springing up all over the place. A number of airlines want to set up their own systems either for internal use (to keep track of baggage and internal networks) or as a freebie to attract passengers. Meanwhile, the airports are busy selling exclusive rights to folks like T-Mobile and others to provide service to passengers for a fee, with the airport getting a cut of the take.
Naturally enough, the airports don’t like the airlines setting up on their own and cutting into their business. They also don’t like the idea of lots of little ad hoc networks springing up everywhere, possibly interfering with each other, and degrading performance of their own network. So the airports, as monopoly lessors to airlines (it’s not like Continental can build its own airport or drop the Boston market over wifi), started telling the airlines to close their wireless networks and use the airport’s officially approved network. Which, of course, would cost the airlines an additional fee.
So the airlines filed a Petition to get the OTARD rules applicable to themselves. The airports objected. Both invoked national security, 911 firemen, public safety, yaddah yaddah yaddah.
In June 2004, the FCC’s Office of Engineering and Technology (the relevant Bureau) issued a public notice clarifying things. According to the public notice:
1) Yes, when the FCC says that it and it alone handles interference issues in the United States, it really means it.
2) This applies to unlicensed transmitters lawfully operating under FCC certifications as well as to TV antennas and satellite dishes.
3) OTARD rules apply to unlicensed devices, both receivers and transmitters, so landlords cannot prevent tenants from setting up their own wireless networks.
I applauded this ruling at the time, and still do. Yes, there are circumstances in which people want to control their networks. But without the OTARD rules, we could expect a lot of apartment building landlords and others to start charging residents for use of wifi networks in their apartments.
Worse, it would mean serious trouble for wireless ISPs (WISPs) and community wireless networks (CWNs) and municipal networks. I’m not talking about getting space on the roof for a transmitter. You still need to negotiate with a landlord for that. Rather, as broadband gets consolidated into cable and telco monopolies, we could expect to see the same sort of anti-competitive behavior where they cut deals to get rival networks excluded. As many of the intended beneficiaries of CWNs and muni networks live in rental housing, this could cause real problems. Similarly, many of the commercial clients WISPs service inhabit office parks or other environments that with landlords who might decide to force everyone to use local telco or cable provider for a share of the profits. Or might want to force all the businesses in the strip mall to use my wireless network, for which you pay an extra fee. After all, it is ever so much more efficient and avoids any possible interference.
So yes, there are many problems with “unauthorized access points,” as those who favor more control like to call them. But, taken together, I believe OTARD remains critically necessary to protect wireless deployment.
Also of great moment, the OTARD rules have a few exceptions. For example, if there is a real health and safety issue, the landlord can prohibit use. So no, you cannot use the OTARD rules to set up a wireless network in a hospital room and screw up all the medical devices and possibly the hospital’s internal network. Also, in the name of efficiency and with a nod to asthetics, the FCC permits landlords to designate a central antenna instead of everyone setting up their own. BUT, and this is critically important here, the central antenna can’t give the landlord control over the provider of the service. If my building sets up a satellite dish for me, I have to be able to get either DirecTV or Dish Network for my landlord to prohibit me pointing a satellite dish out the window (if I happen to look south).
Which brings us to the current fight. Massport, which *sniffs* disdainfully that it can’t imagine that some silly little federal agency like the FCC has real authority over a proud bastion of the state of Massachusetts, has informed Continental that the free wifi it offers to customers in its frequent flyer lounge is a public safety hazzard. If Contenintal wants to offer this service, it can use Massport’s “central antenna” provider — for which Continental must pay. Continental, no surprise, thinks this is a crock and demands to know how it is creating a public hazzard, seeing as how it has set power levels low enough to keep its wifi network in the closed off lounge. Massport repeats that its lease provsions say Continental can’t have its own network, and that even if the FCC rules are legal, according to the FCC’s FAQ on OTARD (last updated 2001), it can require Continental to use a central antenna.
I’d be inclined to laugh, except that, as I said above, I think OTARD is pretty central to healthy deployment of wireless as a broadband solution, particularly to those who need it most. Last year, we had Michael Powell as Chair of the FCC and Ed Thomas as head of OET, two guys really gung ho on unlicensed spectrum and its usefulness as a broadband solution. Now we have Bruce Franca and Kevin Martin. Neither Franca or Martin have a track record yet on unlicensed. Both have said good things about it and support it, but there is all the world of difference between thinking something is nice and thinking something is important. Will Martin’s Republican ideology prompt him to prefer landlord rights and side with the airlines? Will his well known concerns over public safety prompt him to be extra cautious? Or will he decide that the public safety claims are unsubstantiated and go with FCC precedent and competition in wireless?
So, for those of us who think this important (that would be me, at least), we need to show up and explain why this matters. Deadline for comments is August 29, with replies due September 12. As I’ve said before, anyone can file and yes — your comments matter (particularly if they are well thought out and polite). You can file comments by going here and entering 05-247.
Stay tuned . . . .
Harold, a superb message, thanks. It opens a few more potential issues for down the road, if they haven’t surfaced – not necessarily in this case, but – elsewhere.
Incumbent cable operators have franchises with towns and cities that prohibit other communications entities from carrying program content over their electronic infrastructures. With cellphone-vision and the prospect of ‘Net-based video a la triple play being delivered to end points via WiFi and WiMAX, I’m sure that we’ll be hearing more claims of cable rights infringement here, as well.
Anyone who’s ever consulted to a service provider entity, or tried on their own, to bring a video service onto a port authority’s premises as the second or nth provider after the p.a. has already put in place a deal with the primary, is probably already aware of the “revenue streams” that are at stake.
Like you say: It is, after all, all about the money. And oh, yes.. public safety, too!
Frank
Harold,
Thanks, as always. If Massport is really way off base, it seems to me that there should be some kind of penalty for crying “Public Safety”. I suppose that this is not exactly like crying “fire” in a crowded theater, but it really frosts me that they would dick around with public fears about airport safety when airports are already paranoid-enough places, and a place where one’s legal rights are at hazard (at best).
So, I would like to be really convinced that Massport has no legitimate safetly claim at all (and from what I understand of it, their claim sounds like bullshit).
I will file a (nice, polite) comment at FCC in any event.
Harold–
What about the court fight last year between the airlines and the airports? It’s not clear to me how this case is any different. If I recall correctly, the airlines said they could use unlicensed spectrum to implement their own baggage checking system. The airports said no, they needed to control all unlicensed use within the airports. And the airlines won.
–Jim
That was at the FCC, not in court. The win was the declaration last year that OTARD applied unlicensed.
MASSPORT doesn’t seem to want to accept this, and are now trying to shut Continental down under the exception to the OTARD rules.