Unlicensed space becoming a hot spot

I can usually gauge the interest in a subject I’m writing about based upon the number of e-mails that I receive. Other than 800 MHz rebanding, the subject that generated the most e-mail was the column on bi-directional amplifiers. It seems that many of you are concerned about their misuse.

I’m happy to report that Bird Technologies (whom you may know as TX/RX) has stepped up to the plate. On their behalf, we filed a Petition for Rule Making that seeks to amend Section 90.219 of the FCC’s rules to more tightly regulate their use and make it clear that permission of the licensee must be obtained first. The Association of Public-Safety Communications Officials has now filed a letter with the commission supporting the petition, and hopefully others will, too.

But this issue is only a microcosm of what is happening in the wireless licensed versus unlicensed space. The interest of several municipalities in building Wi-Fi systems for residents is about to clash with the FCC’s OTARD Rules in a way not previously envisioned.

You may recall that in March 2004, I filed on ITA’s behalf a Petition For Declaratory Ruling asking the FCC to declare that airport authorities could not prevent airline tenants from installing Wi-Fi systems within their leased spaces. The petition was in response to several airport authorities that had taken the position that they could restrict Wi-Fi use within the airport grounds, forcing airlines to take service from the airport’s selected vendor, regardless of whether the airline’s use was for customer or internal purposes.

The basis of the petition was (along with several other arguments) the FCC’s OTARD Rules, which prohibit restrictions that impair the installation, maintenance or use of antennas used to receive video programming. It was later expanded to apply to fixed wireless systems where the user has a direct or indirect ownership or leasehold interest in the property — in other words, a tenant.

In response, the FCC issued an order in June 2004 that essentially agreed with the argument. However, the Massachusetts Port Authority (Massport) elected to enforce its own policies anyway and demanded that Continental Airlines remove its Wi-Fi system from Continental’s President’s Lounge. Continental subsequently asked for a Declaratory Ruling from the FCC, finding Massport’s action as improper under the commission’s OTARD Rules, and a number of parties have now jumped in the fray, with 2317 sets of filings at this point.

Why should you care about the outcome, unless you’re an airline? Here’s why: Should the FCC declare that the OTARD Rules don’t apply to unlicensed services, then your landlord could restrict your ability to have your own Wi-Fi system within your lease space.

Let’s extrapolate this same issue into the Wi-Fi frenzy that is presently hitting many municipalities. Philadelphia, San Francisco, Anaheim and Long Beach, Calif., are but a few of the cities setting contracts for Wi-Fi services. Upsetting the OTARD Rules could enable these entities to restrict Wi-Fi systems in a number of situations.

What about municipal pole attachment rules? Could a municipality allow one vendor on a pole, but restrict another? I’ve already seen one situation where a municipality decided that a tower that had been in existence for eight years was suddenly not in compliance with local zoning rules. What sparked the sudden interest in the tower’s dismantling? The tower housed a commercial Wi-Fi system that was a competitor of the city’s recently selected vendor.

Even if the OTARD Rules remain in place, there are two exceptions that provide that they do not apply in cases of safety concerns or conflict with historic preservation goals. Could a municipality construct a Wi-Fi system in a police station, then tell the Starbucks across the street that their operation creates a public-safety danger? The bottom line is that the airport problem we thought had been dealt with more than a year ago hasn’t gone away, and it has since become a much larger issue. At the end of the day, the FCC will decide if unlicensed spectrum (a cherished child of late) will truly be unlicensed and if all users are equal — or whether some users are more equal than others.

Alan Tilles is counsel to numerous entities in the private radio, Internet and entertainment industries. He is a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker and can be reached at [email protected].