[Federal Register: November 29, 2006 (Volume 71, Number 229)]
[Rules and Regulations]
[Page 69052-69054]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no06-11]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 15
[ET Docket No. 05-247; FCC 06-157]
Over the Air Reception Devices (Continental Airlines)
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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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, (202) 418-0636, e-mail
Nicholas.Oros@fcc.gov.
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 http://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 (202) 488-5300; fax (202) 488-5563; e-mail
fcc@bcpiweb.com.
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
[[Page 69053]]
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
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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.
[FR Doc. E6-20142 Filed 11-28-06; 8:45 am]
BILLING CODE 6712-01-P