[Federal Register Volume 71, Number 229 (Wednesday, November 29, 2006)]
[Rules and Regulations]
[Pages 69052-69054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20142]


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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 
[email protected].

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 (202) 488-5300; fax (202) 488-5563; e-mail 
[email protected].

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

[[Page 69054]]

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