Although the federal government offers no protection in regard to your city or town's ability to offer you wireless (or wired) broadband services, it's still looking out for your communication rights in some respect. Thanks to a little-known set of Federal Communications Commission regulations, you do have certain rights to wireless access--rights that were upheld in a recent ruling in a dispute between Boston's Logan Airport and Continental Airlines.
Some frequent flyers have taken advantage of the special lounges that airlines provide to their best customers. These lounges are typically small havens from the hustle and bustle of the airport, complete with free food and beverages, and services such as free wireless Internet access. Continental has been offering free Wi-Fi to guests at its lounge at Logan for a couple of years.
Nothing the matter with that, right?
Wrong, according to the Massachusetts Port Authority (or Massport), which owns the airport. Massport had a deal with Advanced Wireless Group for that company to provide Wi-Fi access throughout the airport. It's not free, however: AWG charges users about $8 a day for the service, with Massport getting a cut, of course.
Apparently Massport wasn't thrilled with the competition from Continental's free Wi-Fi-equipped lounge, and told the airline that the service violated the terms of Continental's lease.
Continental appealed to the FCC for help and ultimately got it, in spades. The commission's ruling is one of the most unequivocal I've seen, and sets a strong precedent for consumer protection in such cases.
The Guiding Wi-Fi Light
Over the past ten years, the FCC has developed and revised a set of rules governing Over-The-Air Reception Devices (OTARD for short--yes, the government sure does come up with snappy acronyms). Originally meant to protect a consumer's right to get video programming via antenna, these rules were expanded several years ago to cover wireless two-way transmitters.
The pertinent rules in this case allow a user to have antennas or reception devices such as routers and wireless access points in an area that he or she controls. The services these antennas or reception devices support--whether voice, data, or video--can be shared with others as long as the antenna is used primarily to provide the service at that same location.
It doesn't sound like much, but the implications are far-reaching. Because these rules apply not only to places the user owns but to places the user leases yet has control over--a rented apartment, for example--no landlord can force tenants to use central, building-supplied wireless access.
That's exactly what Massport was trying to do to its tenant, Continental.
Massport's Case (or Lack of One)
Massport made several arguments intended to show that the OTARD rules did not apply in this case. For example, Massport quibbled about whether the service was "commercial," as the OTARD rules state that they apply to commercial signals. Massport claimed that since Continental's was a complimentary service, it didn't qualify, but the FCC said that "commercial signal" did not mean that Continental must make users pay for the service to qualify. It was sufficient, the FCC said, that the service connected users to Continental's commercial Internet access.
Massport also attempted to split hairs over who the "users" were in this case. The rules that protect the person who uses the service state that the person or entity must also be the one controlling the area in which the service is offered. Massport claimed that since the service was used primarily by Continental passengers, who did not control the lounge, Continental couldn't count as the applicant under OTARD. The FCC rightfully dismissed that--of course Continental itself uses the service (if for no other purpose than to provide something extra for its customers), and since it is the leaseholder there's no question that that portion of the claim is correct.
Hub or Endpoint?
Three other Massport points were a bit more serious. First, OTARD was meant to protect customer-end antennas, not hubs that service hundreds of other people. Basically, AT&T or Verizon can't stick a hub in a customer's home and claim that the installation is governed by OTARD instead of the more rigorous state and county laws that would otherwise apply. Massport tried to make the case that Continental's installation was a hub, since it was a sort of pass-along service from Continental to other users.
The FCC's response to this was simple: To be a hub, the service must be passed along to others at a different location. Since the service and the antenna in this case were localized, there was no issue.
Massport and AWG also stated that because Continental had an alternative--the central service AWG provided--in essence Continental had no need for its own, and so there was no problem with Massport telling Continental to take it down. The FCC responded well to this, too. First, the commission said, it deliberately did not make an exception in its OTARD rules for a centrally available alternative, since the point is consumer control and choice.
Massport wanted to force Continental to rely strictly on AWG's service in order to continue providing Wi-Fi service to its lounge customers. And Continental might not even have been able to provide uninterrupted service: Massport and AWG took months to come up with a plan for Continental to use AWG's service, and the FCC implied that they did so only because Continental had filed for a ruling with the FCC. This would have left Continental at the mercy of one provider, both in terms of the quality of service and its price. All these things are no-nos as far as the FCC is concerned.
No Security Threat
Lastly, Massport attempted to play the security card, arguing that Continental's service might impede important communications within the airport. (Safety and historical value are the two main things that can get OTARD protection dropped.) The commission came back with a narrow definition of safety that pertains to physical security of premises and hardware, not potential leaks in communication or interference with other signals.
In addition, since Continental's antenna operated within the specs that the FCC set out for OTARD hardware, it couldn't be faulted for potential interference anyway--and Wi-Fi antennas are all meant to operate concurrently. The unlicensed frequencies that Wi-Fi uses have no exclusivity (as far as the FCC is concerned), so interference just has to be tolerated. Never mind that we're talking about frequency bands that are also used by cell phones, baby monitors, and many more devices that, given Massport's reasoning, would then have to be regulated in airports.
The bottom line: This ruling affirms consumer rights to have their own Wi-Fi service within their own premises, whether owned or rented. It expressly slaps down the notion that a central alternative is an excuse to bar individual users from setting up their own service, and does not exempt public agencies from the rules. Nice going, FCC.
A lot of the time, this column talks about things the government is doing wrong, or ways in which its proposals fall short of what we really need. I'm glad to give a pat on the back for a change.
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