In October 2003, I gave a presentation at a Wireless Airport Association meeting in which I stated that airports' shared wireless systems were a wonderful advancement, but I believed the exclusive Wi-Fi arrangements some airports were requiring airlines and other tenants to follow were prohibited by the Federal Communication Commission's Over-the-Air Reception Device Rule, or OTARD. Needless to say, I received quite a chilly reception and haven't been invited back to speak since.

What prompted the discussion was the fact that some airports were requiring airlines to take down any Wi-Fi hot spots that they may have constructed and, instead, use the airport's own system and pay a fee. In early 2004, we filed a Petition for Declaratory Ruling on behalf of the Industrial Telecommunications Association on this issue. In response, on June 24, 2004, the FCC issued a Public Notice, which confirmed the applicability of OTARD to these situations.

Essentially, the OTARD Rule applies to antennas of 1 meter or less in size. The antennas must be used for transmitting and/or receiving commercial non-broadcast communications signals transmitted via fixed wireless technology to a customer location. The rule prohibits homeowner's associations, landlords, state and local governments or any third parties from placing restrictions that impair a customer antenna user's ability to install, maintain or use customer antennas that transmit and/or receive commercial non-broadcast communications signals when the antenna is located “on property within the exclusive use or control” of the user.

Unfortunately, the Massachusetts Port Authority (Massport), owner of Logan Airport, disagreed. In July 2005, Massport ordered Continental Airlines to remove its Wi-Fi hot spot from Continental's President's Club, claiming its operation violated Continental's lease. Continental filed a Petition for Declaratory Ruling with the FCC, which the agency promptly placed on public notice. In response, the FCC received more than 2300 comments.

On Nov. 1, the FCC issued a Memorandum Opinion and Order, which found that Massport's restrictions on Continental's use of a Wi-Fi antenna was precluded by OTARD. Continental's petition was granted.

The impact of this decision is not solely felt at airports but can apply to any leased building, whether it is an apartment or office building. Thus, it is a decision that should be carefully reviewed by any landlord or any tenant.

In all of the rancor in this proceeding, what was lost is what makes the most business and practical sense. Multiple hot spots in a small area, if there is heavy use, don't really present an interference issue, per se. But it does have the potential to drag down any one system's throughput. This is a legitimate concern on the part of the airport or any landlord. Where we need to go from here is from a state of opposition to one of cooperation. Wi-Fi use is becoming universal. Since the spectrum is unlicensed, you're not going to see a lot of FCC sympathy for complaints of interference from legitimate operations. Therefore, operators of hot spots or other operations in the 2.4 GHz and 5 GHz unlicensed bands must learn how best to cooperate in close spaces.


Alan Tilles is counsel to numerous entities in the private radio and Internet industries. He is a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker and can be reached at atilles@srgpe.com.