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FCC boosts unlicensed spectrum rights

From "Big Win For Community Wireless At FCC" by Harold Feld, The Wet Machine, 2 November 2006:

"The FCC released its long awaited decision resolving Continental Airline's complaint that Massport cannot order it to shut down its free wifi access for Continental customers... [The] case contains many positive and useful determinations for unlicensed generally. It also contains two outstanding concurring statements from the [FCC's] Democratic Commissioners. You can see Copps' concurrence here, and Adelstein's here.

"That's also very good news. Almost a year ago, I worried that, with the departure of Michael Powell and Ed Thomas from the FCC, and the departure of Michael Gallagher from NTIA no one would champion the cause of unlicensed spectrum. But as Copps and Adelstein have shown, both in this decision and in their actions in last month's item on the broadcast white spaces, Copps and Adelstein 'get it' on unlicensed spectrum and why it is so important...

"To refresh everyone's memory, this all began some years ago when airports and airlines began tussling over wireless systems that use unlicensed spectrum (which, for convenience sake here, I'll call 'wifi,' even though we all know it's more than that). A number of airports wanted to limit who could use wireless and exercise exclusive control over how folks in the airport use wireless networks. Meanwhile, the airlines wanted to standardize wireless networks for baggage handling and identification, have the flexibility to offer wifi to travelers as an amenity, etc.

"And it wasn't just airports. Other landlords wanted to be able to control the proliferation of access points and wireless networks as well. So the FCC issued a declaratory ruling that landlords (such as airports) cannot prevent their tenants from using wireless devices and wireless services of their choice, provided they use antennas smaller than one meter in length/diameter and that placement of the antenna does not create any risk to health and safety.

"The FCC had actually created these rules, called the 'Over The Air Receiver Device' (or OTARD) rules many years before so that people in apartment buildings or condos could subscribe to satellite TV providers like DIRECTV. In 2000 (reaffirmed in 2004) the FCC extended the OTARD rules from DBS receiver dishes to licensed transmitters. So extending the rules again to cover unlicensed transmitter/receivers was not a huge stretch...

"Here are, in my opinion, the key holdings of today's decision:

"1) OTARD definitely applies to Part 15 'unlicensed' devices...

"2) The FCC provided clarification of the 'public safety' exception and made important statements about the distinction between unlicensed and licensed spectrum. Massport claimed that because it intends to run public safety applications over its unlicensed networks, it cannot tolerate any interference from other unlicensed networks. Accordingly, the 'public safety' exception to OTARD should apply. The FCC rejected this argument for several reasons. First, the FCC found that the 'public safety' exception only applied to physical safety issues from positioning the physical antenna. For example, you can't put your satellite receiver dish on your emergency exit door, even if that is the only place under your control with the needed clear exposure of the southern sky.... More importantly, however, the FCC went on to discuss the critical difference between Part 15 'unlicensed spectrum' and exclusively licensed spectrum. This is at Par. 30 of the order...

" 'Part 15 specifies power levels, frequency bands, and conditions under which devices may transmit RF signals without requiring a license.' says the FCC. And, most importantly here, 'Part 15 devices do not receive interference protection from other Part 15 devices.' Because of this, 'Massport has no right to operate the airport Wi-Fi backbone free from interference from other Part 15 devices, including Continental's Wi-Fi... The type of traffic carried by the backbone does not change the application of Part 15 of our rules. [emphasis added] Users who believe they must have interference-free communication should pursue the exclusive-use options under our licensed service models instead of relying on Part 15 devices...'

"Why do I think this is so important? Because, as time goes on, and we get various WISPs and businesses and so forth using unlicensed spectrum, I keep hearing all kinds of whining about how we need to make unlicensed more like licensed spectrum... Well ya know what? Tough nuggies! If you don't feel comfortable putting your public safety communication or financial info or whatever on unlicensed spectrum... then DON'T USE UNLICENSED SPECTRUM...

"And, at the same time, don't think that just because you're uncomfortable using unlicensed for these things, that the rest of us shouldn't get our chance to use it. Because there are a lot of people who think unlicensed - especially because of its advantages of flexibility, user autonomy, and price - is a the best idea to come along since the last non-proprietary open standard... Don't try to change the rules for everyone else just because you want to run certain kinds of applications over unlicensed spectrum but wish it were more like licensed spectrum...

"OK, I'm off the hobby horse now. Moving on to the last critical holding...

"3) The FCC explicitly held that its Section 303 licensing authority applies to 'unlicensed' spectrum. The Commission has long had a schizoid attitude about whether it regulates Part 15 under its Section 302 authority to license equipment, or whether Part 15 is a subspecies of license under Section 301, or whether it is so low power that Section 301's requirement that the Commission license all transmitters simply doesn't apply.

"Par. 38 [of the newly released order] explicitly invokes the Commission's authority under Section 303(d) and the 'broad definitions' of radio stations and radio communications. By this logic, Part 15 devices are actually a subspecies of license, not an equipment certification or something outside the statutory definition. [emphasis added]

"Why does this matter? Because if Part 15 devices are 'really' a form of licensed device, rather than a form of equipment certification or something else, then the FCC can - if it wants - put them on equal footing with other licensed services. If Part 15 devices are, at least for now, third class citizens at the FCC, that is only a [matter] of policy rather than law. The FCC could, on some future occasion in the exercise of its statutory authority, [choose] to change this policy.

"Of course, the FCC does no such thing here. As I just got through arguing above, the FCC makes a clear distinction between licensed and unlicensed - and for good reason. But as the FCC wrestles with issues such as whether to permit unlicensed operation in the broadcast [band] 'white spaces,' it constantly faces issues of how to balance the interests of 'licensed users' with 'unlicensed users.' If, as a statutory matter, the two services stand on equal footing, the FCC has much greater discretion to set the balance between users as a matter of policy...

"Commissioner Copps and Commissioner Adelstein both issued strong statements in support of unlicensed spectrum and community wireless. While both observed that if Massport could have shown any possible interference with licensed public safety operations, it would have been a different story, both stressed the importance of preserving the freedom of open spectrum to promoting community wireless broadband. Copps, in language that echoes sentiments that I have written here many times, wrote this eloquent paragraph that bears repeating again and again:

" 'Wi-Fi is one of the Commission's greatest wireless success stories. The genius of this unlicensed technology is that no central authority controls or manages how and where these networks spring up. Instead, any private or commercial operator who sees a need for a local Wi-Fi network may build and operate one. The price that Wi-Fi users pay for this freedom is that they, like all Part 15 users, must accept interference from other devices in the unlicensed bands. But the nation's half-decade of experience with this new technology has made it quite plain that this trade-off is more than worth it. When it comes to providing broadband over the unlicensed bands, the airwaves are truly the people's airwaves. So while I certainly support strong licensing regulation in some contexts, I think it is equally important that we leave other portions of the spectrum open to unlicensed uses.' (emphasis in original)..."

[Spectrum Policy: 3 November 2006]