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ACI-NA Spring Legal Issues Conference FCC ISSUES: MASSPORT WI-FI ORDER AND OTHER DEVELOPMENTS

Summary. Massport: FCC released order November 1, 2006.Exclusive Contracts: FCC has initiated new proceeding addressing access to buildings by providers.Communications Association to Law Enforcement Act.. Factual Background. Massport selected Advanced Wireless Group, LLC to build and operate ubiquitous Wi-Fi network at Logan Airport.Continental Airlines installed Wi-Fi antenna in club lounge.Because signal extended far outside lounge, Massport asked Continental to lower power and later to9454

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ACI-NA Spring Legal Issues Conference FCC ISSUES: MASSPORT WI-FI ORDER AND OTHER DEVELOPMENTS

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    1. ACI-NA Spring Legal Issues Conference FCC ISSUES: MASSPORT WI-FI ORDER AND OTHER DEVELOPMENTS Savannah, Georgia April 26, 2007 Matthew C. Ames Miller & Van Eaton, P.L.L.C. mames@millervaneaton.com

    3. Factual Background Massport selected Advanced Wireless Group, LLC to build and operate ubiquitous Wi-Fi network at Logan Airport. Continental Airlines installed Wi-Fi antenna in club lounge. Because signal extended far outside lounge, Massport asked Continental to lower power and later to remove antenna.

    4. Factual Background (cont’d) Massport was concerned by effect on its system as well as interference with other users at Logan. Parties negotiated, and Massport offered several technical alternatives, but Continental refused.

    5. Legal Background Over-the-Air Reception Devices Rule, 47 C.F.R. §1.4000, adopted to allow homeowners to install satellite dishes, other TV antennas. Rule gives tenants rights to install, regardless of lease terms. Rule later expanded to include two-way “fixed wireless” antennas.

    6. Legal Background (cont’d) Rule prohibits restrictions that “impair” “installation, maintenance or use” of antenna installed “on property within the exclusive use or control” of the antenna user. Restriction “impairs” if: “unreasonably delays or prevents installation, maintenance or use;” “unreasonably increases the cost of installation, maintenance or use;” or “precludes reception of transmission of an acceptable quality signal.” Key term = “unreasonably”

    7. Proceedings at FCC Continental filed Petition for Declaratory Ruling in July 2005. FCC solicited public comment. Massport, ACI-NA, some individual airports, filed comments. T-Mobile and other providers filed comments supporting Continental.

    8. Proceedings at FCC (cont’d) FCC allows “ex parte” meetings after formal comments filed. Massport offered Continental access to AWG network at same or better speed, and lower price – Continental refused. Continental refused to identify its ISP or exact terms of service.

    9. Legal Arguments Massport primarily relied on “central antenna exception.” Massport raised numerous arguments about FCC’s authority to extend OTARD to Wi-Fi, and applicability of OTARD in this case. Massport noted problems with interference, claimed FCC’s safety exception applied. Massport requested special exemption for airports.

    10. Legal Arguments (cont’d) ACI-NA urged FCC not to adopt broad ruling; pointed out benefits of allowing airports to provide ubiquitous service. ACI-NA stressed role of airport as manager of critical infrastructure. ACI-NA also pointed out practical problem: FCC can’t order airport to allow tenant to have high speed connection to Wi-Fi antenna.

    11. FCC’s Order Order does not address interference issues to significant degree – depends entirely on broad application of OTARD Rule. FCC did not apply OTARD Rule honestly. OTARD Rule first requires that user have exclusive right to use space – this pretty clearly was the case. Rule then requires analysis of “impairment.”

    12. FCC’s Order (cont’d) Impairment requires “unreasonable” restriction. FCC conducted no real analysis of reasonableness: refused to acknowledge any difference between environment and concerns at airport vs. satellite dish in apartment building. FCC ignored all information in the record about special needs of airports.

    13. FCC’s Order (cont’d) FCC rejected “central antenna” exception, despite its prior order allowing for possibility. FCC refused to require Continental to provide technical information that might have helped Massport show it was providing comparable service at lower cost. FCC claimed Massport’s settlement offer proved “unreasonableness” because last effort was made 8 months after filing – ignored Massport’s earlier offers.

    14. FCC’s Order (cont’d) FCC rejected all arguments related to its authority to apply OTARD rule to Wi-Fi antennas. FCC acknowledged that it could not require airport to let tenant install high-speed line – but said this was not an issue because Continental already had such a line.

    15. Reasons Behind FCC’s Decision FCC wants to avoid any challenge to its deregulatory scheme for unlicensed frequencies. FCC does not object to domination of spectrum by handful of private sector operators. FCC is opposed to municipal wireless initiatives, and restricting airports’ options may hinder development of attractive municipal business models.

    16. Likely Consequence of the Order Order prevents airports from mandating use of central system. Order gives individual tenants strong claim to right to install antennas in any circumstances. Order will encourage T-Mobile and others to seek additional contracts with tenants.

    17. Likely Consequence of the Order (cont’d) Order will complicate deployment by airports. Order will increase likelihood of disputes between users and airports. Future disputes may be distinguishable based on facts – but Order will be major obstacle in any legal dispute.

    18. What Can Airports Do? Order does not affect common areas or other property outside control of tenant. Be very careful in granting rights to install antennas outside exclusive use space. Order does not address preferential leases. Order does not preclude financial incentives to use airport system.

    19. What Can Airports Do? (cont’d) Order does not address technical solutions that might limit usefulness of particular antennas. Order does not address interference issues between two unlicensed operators. Order does not prohibit enforcement of interference resolution mechanism in lease agreement – although that would be controversial.

    20. What Can Airports Do? (cont’d) Airports can effectively deny use of Wi-Fi antenna if airport can deny right to high-speed wireline connection to the antenna.

    21. Conclusions on Massport T-Mobile wins in short term. Wi-Max, other technologies may make argument moot. FCC will continue to favor providers.

    22. BUILDING ACCESS PROCEEDINGS FCC has issued public notice seeking comments on its rule preventing telecommunications providers from entering into exclusive agreements for access to commercial premises. FCC is also revisiting issue of access to residential premises for video service, as part of effort to encourage telco deployment of broadband. Proceedings could affect airports if FCC again looks at broad rates mandating access to buildings. Comments due June 18.

    23. CALEA Deadline for compliance: May 14, 2007. May be issue for airports that provide Internet access, other communications services to the public.

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