E6-20142. Over the Air Reception Devices (Continental Airlines)

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document addresses a Petition for Declaratory Ruling filed by Continental Airlines, Inc. (Continental) pertaining to the installation and use of a Wi-Fi antenna within its lounge at Boston-Logan International Airport (Logan Airport). Continental claims that the Massachusetts Port Authority (Massport), the owner of Logan Airport, has demanded that Continental remove its Wi-Fi antenna, and that such restrictions are prohibited by the Commission's Over-the-Air Reception Devices (OTARD) rules. The Commission finds that Massport's restrictions on Continental's use of its Wi-Fi antenna are pre-empted by the OTARD rules and it grants Continental's petition.

DATES:

Effective November 1, 2006.

FOR FURTHER INFORMATION CONTACT:

Nicholas Oros, Policy and Rules Division, Office of Engineering and Technology, [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Memorandum Opinion and Order, ET Docket No. 05-247, FCC 06-157, adopted October 17, 2006 and released November 1, 2006. The full text of this document is available on the Commission's Internet site at www.fcc.gov. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street., SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone [phone]; fax [phone]; e-mail [e-mail].

Summary of the Memorandum Opinion and Order

1. The Commission's OTARD rules prohibit restrictions on property that impair the use of certain antennas. Restrictions prohibited by the OTARD rules include lease provisions (as is the situation here), as well as restrictions imposed by state or local laws or regulations, private covenants, contract provisions, or homeowner's association rules. Restrictions are prohibited by the OTARD rules if they unreasonably delay or prevent the installation, maintenance, or use of the antenna; unreasonably increase the cost of installation, maintenance or use of the antenna; or preclude the reception of an acceptable quality signal via the antenna. No distinctions are made in the OTARD rules based upon the setting (e.g., residential vs. commercial). There are exceptions in the OTARD rules for restrictions necessary to address valid and clearly articulated safety or historic preservation objectives, provided such restrictions are narrowly tailored, impose as little burden as possible, and apply in a nondiscriminatory manner.

2. The Commission adopted the OTARD rules in 1996 in response to Section 207 of the 1996 Telecommunications Act (1996 Act), which required the Commission to promulgate rules that “prohibit restrictions that impair a viewer's ability to receive video programming services” via antennas. The 1996 Act had as its overarching goals promoting competition in telecommunications, increasing consumer choice, and encouraging the rapid deployment of new technologies. In 1998, the Commission modified the OTARD rules to extend their applicability to rental property. In 2001, the Court of Appeals for the D.C. Circuit upheld the Commission's statutory authority and discretion to extend OTARD protections to rental environments and to preempt any contractual provisions to the contrary. In 2000 the Commission extended the OTARD rules to antennas that transmit or receive fixed wireless signals.

3. The OTARD rules provide that parties who are affected by antenna restrictions may petition the Commission to determine if the restrictions are permissible or prohibited by the rule and sets forth specific filing procedures. Such a determination is highly dependent on the facts alleged by the parties involved. Continental has filed such a petition alleging that Massport has demanded that it remove a Wi-Fi antenna from its lounge at Logan Airport in contradiction of the OTARD rules.

4. Three conditions must be satisfied in order for Continental's Wi-Fi antenna to be covered by the OTARD rules. First, the antenna must be one meter or less in diameter or diagonal measurement. Second, the antenna must be located on property within the exclusive use and control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property. Lastly, the antenna must be used to receive or transmit fixed wireless signals. Massport concedes that Continental's Wi-Fi antenna satisfies the first condition, i.e., the antenna is less than one meter in diagonal measurement. The Commission finds that the second requirement is also satisfied. There is no dispute that Continental has a direct leasehold interest in the airport lounge where the Wi-Fi antenna is located, nor is there any indication in the record that the lounge is not exclusively used and controlled by Continental. It is Continental that is asserting rights under the OTARD rules, and it is Continental that is “using” the antenna to send and receive signals from its customers and employees within the lounge and has exclusive use and control of the leased premises.

5. For purposes of the third condition, that the antenna receives or transmits fixed wireless signals, a signal is a fixed wireless signal if it is (1) commercial, (2) non-broadcast, and (3) transmitted via wireless technology to and/or from a fixed customer location. The Wi-Fi antenna transmits commercial signals because Continental accesses a commercial Internet service that it receives over a wireline connection and uses the antenna to transmit those same commercial signals within the lounge. There is no dispute that the Wi-Fi signals are non-broadcast. The application of OTARD is not limited to fixed antennas used for signals originating or terminating outside of the leased premises. Thus, Continental's Wi-Fi antenna transmits signals via wireless technology to and/or from a fixed customer location.

6. Continental's Wi-Fi antenna is not excluded from OTARD as a “hub” antenna used to deliver service to others. When a leaseholder or property owner uses an antenna to send and receive signals strictly within its premises, and not to “multiple customer locations,” the antenna user is using the antenna for its own purposes under the OTARD rules. The present case involves the sending of signals to and from an OTARD-covered antenna strictly within the premises under the exclusive use and control of the antenna user. Consequently, Continental's Wi-Fi antenna cannot be considered a hub antenna.

7. A restriction runs afoul of the OTARD rules if it unreasonably delays, prevents, or increases the cost of the installation, maintenance, or use of the antenna or precludes reception of or transmission of an acceptable quality signal. The restrictions contained in Massport's lease with Continental for the airport lounge unreasonably impair the use of Continental's antenna because the lease provisions for the lounge allegedly require that Continental discontinue use of or remove its Wi-Fi antenna and because the lease allegedly prohibits making alterations to the premises without submitting an application to and receiving prior approval.

8. The presence of an airport Wi-Fi backbone that provides coverage throughout the airport does not provide an exception to the OTARD rule as a “central antenna.” The Commission has explicitly declined to adopt a central antenna exception to the OTARD rule. The availability of a central antenna must be analyzed in the context of impairment—i.e., whether the restrictions on the installation and use of an antenna constitute impairment if the landlord offers a central antenna that may be used by the tenant. The restrictions constitute an impairment because of the time delay in which Massport offered allegedly comparable service, and because Continental would not be able choose its own service provider and would be limited to whatever type of services, level of network security, quality of service, and signal strength the airport Wi-Fi backbone provides.

9. Massport does not qualify for a safety exception to the OTARD rules because of potential interference to the airport Wi-Fi backbone because the OTARD safety exception addresses potential dangers to the physical safety and health of the public and not interference to other radio device users. The Commission further noted that because the Wi-Fi device that Continental is using in the lounge operates as permitted under Part 15 of the Commission's rules, Massport has no right to operate the airport Wi-Fi backbone free from interference from other Part 15 devices, and that the type of traffic carried by the airport Wi-Fi backbone does not change the application of Part 15 of the Commission's rules. Users who believe they must have interference-free communication should pursue the exclusive-use options under the licensed service models instead of relying on Part 15 devices. Massport also does not qualify for a special exemption from the OTARD rule because OTARD has no express exception for governmental entities and Massport has made no showing that its management responsibilities relating to antenna siting differ materially from those of any other landlords.

10. The Commission has the statutory authority to apply the OTARD rules to antennas used to receive and/or transmit fixed wireless signals. There is no indication that Congress intended to limit the Commission's discretionary preemptive authority over antenna siting to the strict parameters of Section 207 of the 1996 Telecommunications Act. Nothing in Section 207 prohibits the Commission from exercising its authority pursuant to Section 303 and other provisions of the Communications Act to protect the siting of other antennas that receive or transmit other types of signals. Furthermore, Section 303(d) of the Communications Act provides the Commission with express statutory authority to regulate antenna siting. Additionally, the Commission's exercise of its ancillary jurisdiction in the Competitive Networks Report and Order also provides an independent basis for the Commission's OTARD rules. When the Commission extended the OTARD rules to include antennas used to transmit or receive fixed wireless signals, it relied upon the statutory goals in Sections 1, 201(b), 202(a), and 205(a) of the Communications Act, as well as the Preamble to and Section 706 of the 1996 Telecommunications Act.

11. The Commission is able to apply OTARD to a state or local government acting in a proprietary capacity. When a governmental entity acts in a private capacity, the authority of a federal agency like the Commission to regulate such action will turn on whether the agency has lawfully exercised its authority in the same manner over similarly situated non-governmental regulatees. The OTARD rules expressly apply to “contract provision[s]” and “lease provision[s],” of private parties. In Building Owners and Managers Association International v. FCC, 254 F.3d 89 (D.C. Cir. 2001) (“BOMA”), the D.C. Circuit held that the Commission possessed the authority to prohibit private leasing restrictions that impair a viewer's ability to receive video programming services through antennas designed for over-the-air reception. In extending the OTARD rules to the wireless context, the Commission relied upon the same policies underpinning the video-based OTARD rules upheld by the D.C. Circuit. Private lease agreements that impair a user's ability to install an antenna falling within the scope of the Commission's OTARD rules conflict with the Commission's authority over such antenna siting. In addition, such a lease agreement stands as an obstacle to the accomplishment and full objectives of federal law to facilitate the availability of advanced communications services and to foster competition.

12. The D.C. Circuit has affirmed in BOMA that application of the OTARD rules to leased property is not a per se taking of the landlord's property rights. Whether a regulatory taking has occurred is determined by considering: (1) The character of the government action; (2) its economic impact; and (3) its interference with reasonable investment-backed expectations. No regulatory taking has occurred because applying the OTARD rules in this situation will promote the important government interests of increasing competition and encouraging the deployment of advanced communication technology; economic harm need not be considered because no one has the right to operate part 15 devices such as Wi-Fi free of interference; and no one has a reasonable expectation to generate revenue from the use of unlicensed spectrum.

Ordering Clauses

13. Pursuant to section 1.4000(d) of the Over-the-Air Reception Devices Rule, 47 CFR 1.4000(d), and section 1.2 of the Commission's rules, 47 CFR 1.2, that the Petition for Declaratory Ruling filed by Continental Airlines, Inc. on July 8, 2005 is granted.

14. This Memorandum Opinion and Order does not change any rules, it grants a Petition for Declaratory Ruling, no Congressional Review requirements are necessary.

Federal Communications Commission.

Marlene H. Dortch,

Secretary.