FCC Makes Important Open Spectrum Decision
FCC Makes Important Open Spectrum Decision
FCC Makes Important Open Spectrum Decision

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    Yesterday, the FCC issued long awaited decision resolving Continental Airline's complaint that Massport cannot order it to shut down its free wifi access for Continental customers. But the decision does a lot more than that.

    First, the decision discussed critical similarities and differences between unlicensed spectrum and licensed spectrum. It affirmed that unlicensed spectrum, like its licensed relative, has become an important vehicle for delivery of wireless services. The Commission has therefore extended the rules that protect a person's freedom to chose licensed wireless services and equipment to unlicensed services.

    The FCC first created these rules, called the “over the air receiver device” or OTARD rules, to protect the ability of people in rental housing or condo associations to get satellite TV dishes — even if landlords or condo associations said no. The FCC reasoned it needed to overide the rights of landlords to dictate terms to tenants to promote competition in video services. In 2000, the FCC extended the OTARD rules to transcievers for licensed wireless services. The Commission again reasoned that it needed to protect the rights of residents in rental housing, or businesses renting office space, to promote competition in the delivery of telecommunications and data services.

    Yesterday's Order (officially affirming a 2004 declaratory ruling from the Office of Engineering and Technology) extended the same protections to unlicensed devices. The Commission found that giving users the freedom to chose unlicensed wireless services promoted the public interest in promoting competition and innovation in the delivery or wireless broadband.

    In other words, unlicensed spectrum is no longer regarded as a mere toy or marginal service. The FCC's action in many ways represents a coming of age for unlicensed spectrum, a recognition of how useful it has become for delivering broadband access and other services.

    But this does not mean that unlicensed spectrum replaces licensed spectrum. To the contrary, the same Order also recognized critical differences between licensed and unlicensed spectrum. Unlicensed spectrum users accept the flexibility and deregulated advanatges of their service. Unlike their licensed cousins, unlicensed spectrum users can freely move transmitters, offer whatever service or application they want, and generally avoid the regulatory burdens of licensing. But in exchange, they must accept that they have no entitlement to interference protection.

    It's a trade off that works very well for a number of applications and purposes. But you can't come and complain to the FCC that you need interference protection to protect your critical transmissions or business model if you opted for unlicensed spectrum use.

    Of course, nothing stops people from developing new technologies that make unlicensed spectrum ever more reliable and faster. And if the rules do irrationally prevent such things (as with cognitive radios), then it is time to go back to the FCC for rule changes. Not to change the nature of unlicensed spectrum to make it more like licensed, but to remove artificial barriers that prevent unlicensed from achieving its full potential.

    Finally, the decision is important because of the concurring statements from Commissioner Copps and Commissioner Adelstein. As I wrote after the FCC released its broadcast white spaces item, Commissioner Copps and Commissioner Adelstein have become the true champions of community wireless and its potential to bring cheap, ubiquitous broadband to ALL americans. I will close with a brief excerpt from each of these statements, as they bear repeating again and again.

    From Commissioner Copps:

    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.

    From Commissioner Adelstein:

    Today we strike a victory for the WiFi revolution in the cradle of the American Revolution. The WiFi movement embodies the spirit of American freedom, and in our action we say “don't tread on me.” The movement has been one of the great telecommunications success stories because it enables American consumers and businesses to offer and receive broadband services at the most local levels – at any time, in any place.

    You can find the official statement from my employer, Media Access Project, here. You can read the comments we submitted to the FCC

    For more detailed and alternate perspectives on yesterday's FCC action, I highly recommend Susan Crawford's analysis, Glenn Fleishman's article, and my own lengthier, snarkier, and more legally focused posting on my home blog, Tales of the Sausage Factory.