ACINA ANNUAL CONFERENCE FCC Regulation of WiFi Facilities

1
ACI-NA ANNUAL CONFERENCE FCC Regulation of
Wi-Fi Facilities

• Toronto, Ontario
• September 18, 2005
• Matthew C. Ames
• Miller Van Eaton, P.L.L.C.
• mames_at_millervaneaton.com

2
Introduction

• Continental Airlines petition at FCC directly
  raises important issues regarding authority of
  airports to deal with introduction of Wi-Fi
  facilities serving tenants and public.
• Petition relies primarily on Over-the-Air
  Reception Devices Rule to claim Massports
  actions are preempted.
• May see broader attack in subsequent pleadings.

3
Terms of OTARD Rule

• Rule preempts restrictions, including lease or
  contract terms, affecting property within the
  exclusive use or control of the antenna user.
• Restriction is preempted if it impairs
  installation, maintenance or use of covered
  antennas.
• Impairment includes anything that unreasonably
  delays or permits installation or use
  unreasonably increases cost or precludes
  acceptable quality signal.

4
Terms of OTARD Rule (contd)

• FCC provides exception for central antenna
  installations, if property owner can show there
  is no impairment.
• Rule also allows request for waiver in case of
  highly specialized and unusual concerns.
• Rule includes exception for safety requirements.

5
Application of OTARD Rule

• Only applied in residential context so far.
• FCC strongly favors antenna user.
• No FCC decision applying central antenna option.

6
Application of OTARD Rule (contd)

• Exception for safety concerns interpreted
  strictly.
• Burden of proof is on property owner.
• Cant take enforcement action under lease if FCC
  petition or court case pending.

7
Application of OTARD Rule (contd)

• FCC unlikely to cede authority over interference,
  but authority may not extend to private
  agreements. (See Sprint Spectrum v. Mills.)
• Airport can ban installation of antennas in
  common areas.
• Airport cannot simply ban installation within
  demised premises, unless central antenna
  exception applies.
• But scope of safety and other restrictions in
  leased premises may be greater in airport
  context impairment depends on FCCs view of
  reasonableness.

8
Application of OTARD Rule (contd)

• Rule may not extend to use by third parties
  (e.g., club members).
• Exclusive arrangements more likely to be
  preempted, and FCC is especially skeptical of
  revenue generation as motive for exclusivity.
• But strict enforcement of FCCs rules undermines
  public policy of ubiquitous access for all.
• Therefore, common access systems may be
  defensible.

9
Conclusion

• Massport has good arguments but FCC has broad
  discretion.
• FCC needs to understand this is not a trivial
  matter, either for Massport or airports
  generally complexity of airport environment
  demands local management.