**DA 04-1844**

**June 24, 2004**

**COMMISSION STAFF CLARIFIES FCC'S ROLE REGARDING RADIO INTERFERENCE
MATTERS AND ITS RULES GOVERNING CUSTOMER ANTENNAS AND OTHER UNLICENSED
EQUIPMENT**

The FCC's Office of Engineering and Technology (OET) releases this
Public Notice in response to questions from the public regarding the use
of unlicensed devices, including customer antennas, especially in the
context of a variety of multi-tenant environments (MTEs). MT
environments encompass venues such as hotels, conference and convention
centers, airports, and colleges and universities. In particular,
questions have arisen about the role of the Commission in addressing and
resolving radio interference ("RFI") issues in these settings. In
addition, questions have arisen about the ability of homeowners
associations, landlords, and other third parties to prohibit customer
use of small antennas when consumers install and operate them as
unlicensed devices.

In response, we reaffirm that, under the Communications Act, the FCC has
exclusive authority to resolve matters involving radio frequency
interference \[RFI\] when unlicensed devices are being used, regardless
of venue. We also affirm that the rights that consumers have under our
rules to install and operate customer antennas one meter or less in size
apply to the operation of unlicensed equipment, such as Wi-Fi access
points - just as they do to the use of equipment in connection with
fixed wireless services licensed by the FCC.

Under the Communications Act of 1934, as amended, the FCC holds
exclusive jurisdiction over the regulation and resolution of RFI
issues.[^1] Section 301 declares that one of the purposes of the Act is
to "maintain the control of the United States over all channels of radio
transmission," and Section 303(f) obligates the Commission to make
regulations necessary to "prevent interference."[^2] In addition,
Section 302 has granted the Commission express authority to adopt
regulations "governing the interference potential of devices which in
their operation are capable of emitting radio frequency energy by
radiation ... in sufficient degree to cause harmful interference to
radio communications."[^3] As the Conference Report to the 1982
Amendments to the Act stated, the Act reserves "exclusive jurisdiction
to the Federal Communications Commission over matters involving RFI
\[and provides\] that regulation of RFI phenomena shall be imposed only
by the Commission."[^4] Both the FCC and the federal courts have
overturned attempts by third parties to regulate RFI matters in light of
the FCC's exclusive authority in this area.[^5]

The statute has always contemplated FCC authority over not only RFI
issues raised by the operation of FCC licensees, such as radio broadcast
stations, but also RFI issues arising from the operation of unlicensed
devices. As the Senate Report to the 1968 Amendments to the Act stated,
"\[t\]he Federal Communications Commission presently has authority under
Section 301 of the Communications Act to prohibit the use of equipment
or apparatus which causes interference to radio communications and,
under 303(f) to prescribe regulations to prevent interference between
stations. Pursuant to this authority the Commission has established
technical standards applicable to the use of various radiation
devices."[^6] As one example of RFI involving unlicensed devices, the
Report cited interference caused to air-safety-related emergency
communications and other frequencies at a California facility by 58
garage door openers, which were then, as well as now, RF devices subject
to technical standards set out in Part 15 of our rules.[^7] The 1968
changes to the Act expanded the FCC's authority to address these
questions by enacting Section 302, which authorized the agency to apply
its technical standards to the manufacturers of possible
interference-causing devices.[^8] Today, in addition to the unlicensed
devices discussed in the legislative history, such as radios, tape
recorders, remote control devices, and garage door openers, a great
diversity of RF technologies operate on an unlicensed basis under Part
15. This growth has led to the increasing number of inquiries from the
public about the FCC's authority to regulate RFI, and our decision to
reaffirm that this authority exists regardless of whether devices or
operations are of a licensed or unlicensed nature.

We also affirm that the consumer protections for the installation and
use of consumer antennas under the FCC's Over-the-Air Reception Devices
(OTARD) rules apply to unlicensed devices.[^9] By their terms, these
rules apply, among other things, to customer antennas - one-meter or
less in size - used for transmitting and/or receiving any *fixed
wireless signal* of any commercial nonbroadcast communications signal
that is transmitted via wireless technology to or from a customer
location. The rules prohibit homeowner associations, landlords, state
and local governments, or any other third parties from placing
restrictions that impair a customer antenna user\'s ability to install,
maintain, or use such customer antennas transmitting and/or receiving
commercial nonbroadcast communications signals when the antenna is
located "on property within the exclusive use or control" of the user
where the user has a "direct or indirect ownership or leasehold interest
in the property, except under certain exceptions for safety and historic
preservation.[^10]

In a recent *Memorandum Opinion and Order* (*MO&O*), the FCC held that
OTARD protections apply to certain kinds of wireless technologies where
customer-end antennas also function to relay service to other
customers.[^11] The point-to-point-to-point and "mesh" architectures
addressed in the *MO&O* are being actively developed and deployed to
provide innovative services on both a licensed and unlicensed basis. The
FCC observed in the *MO&O*, that for the purposes of OTARD protections,
the equipment deployed in these networks shares the same physical
characteristics of other customer-end equipment, and found that the only
difference was the additional functionality of routing service to
additional users. The FCC stated that the OTARD rules should not serve
to disadvantage more efficient technologies, and held these protections
also extend to such technologies when they otherwise meet the
requirements of the rules.[^12]

Under FCC rules, fixed wireless customer antennas protected by OTARD are
those used to receive and/or transmit "fixed wireless signals" --
*i.e.*, commercial nonbroadcast communications signals "to and/or from a
fixed customer location."[^13] The rules do not limit their
applicability only to signals used in conjunction with a licensed
service, or exclude signals sent to or from an unlicensed device
operating under Part 15 of our rules. In fact, the current applications
of "mesh" and point-to-point-to-point technologies discussed in the
*MO&O* are predominantly unlicensed devices providing service under the
FCC's Part 15. In 2000, the FCC extended OTARD protections to include
fixed wireless technologies, refusing to distinguish protections based
on the services provided through the same customer antenna. The FCC
noted that precisely the same customer antennas may be used for video
services, telecommunications, and internet access, and sometimes that a
single company might offer different packages of services using the same
type of customer antennas. For these reasons, the FCC's OTARD
protections apply regardless of whether the fixed wireless signals are
delivered on a licensed or unlicensed basis.

This action is taken under delegated authority pursuant to Section 5(c)
of the Communications Act of 1934, and Sections 0.5(c), 0.31, 0.204,
0.241 of the Commission\'s Rules, 47 C.F.R. §§ 0.5(c), 0.31, 0.2.04,
0.241.

Office of Engineering and Technology contact: James Miller, (202)
418-7351, e-mail James.Miller@FCC.gov.

­-OET­-

[^1]: Communications Act of 1934, 47 U.S.C. § 1 et. seq. (all citations
    to the U.S. Code) (Act).

[^2]: 47 U.S.C. §§ 301, 303(f) (2004).

[^3]: 47 U.S.C. § 302a(a)(1) (2004).

[^4]: *See* H.R. Report No. 765, 97th Cong., 2d Sess. 33 (1982), 1982
    U.S.C.C.A.N. 2261, 2277 (1982 Conference Report).

[^5]: *See generally Freeman v. Burlington Broadcasters Inc*., 204 F.3d
    311, 319-22 (2nd Cir. 2000); *Southwestern Bell Wireless Inc. v.
    Johnson County Board of County Commissioners*, 199 F.3d 1185,
    1189-93 (10th Cir 1999); *see also In the Matter of 960 Radio, Inc.,
    Memorandum Opinion and Declaratory Ruling*, FCC 85-578, 1985 WL
    193883 (Nov. 4, 1985) (\"960 Radio\"); *In re Petition of Cingular
    Wireless L.L.C.. for a Declaratory Ruling,* Memorandum Opinion and
    Order, 18 F.C.C.R. 13126, DA 03-2196 (rel. July 7, 2003) ("Anne
    Arundel"); *In re Mobilecomm of New York Inc.*, Memorandum Opinion
    and Declaratory Ruling, 2 FCC Rcd 5519 (CCB 1987) (\"Mobilecomm\").

[^6]: *See* S. Rep. No. 1276, 90th Cong., 2d Sess. 1968, 1968
    U.S.C.C.A.N. 2486, 2487 (1968 Senate Report); *see generally* 47
    C.F.R §§ 2.901, 2.1033, 15.5 et seq (defining the FCC's equipment
    certification and RFI requirements)

[^7]: *See* 1968 Senate Report at 2488.

[^8]: *See* 1968 Senate Report at 2488-91.

[^9]: *See* 47 C.F.R. § 1.4000 (2004) ("OTARD Rule"); *Promotion of
    Competitive Networks in Local Telecommunications Markets*, First
    Report and Order in WT Docket No. 99-217, the Fifth Report and Order
    and Memorandum Opinion and Order in CC Docket No. 96-98, and the
    Fourth Report and Order and Memorandum Opinion and Order in CC
    Docket No. 88-57, 15 FCC Rcd. 22,983 (2000) (extending OTARD
    protections to fixed wireless telecommunications signals).

[^10]: 47 C.F.R. § 1.4000(a)(1) (2004).

[^11]: *See Promotion of Competitive Networks in Local
    Telecommunications Markets*, Order on Reconsideration, 19 FCC Rcd
    5637, FCC 04-41 (rel. Mar. 24, 2004).

[^12]: The Commission did note that its ruling that OTARD protections
    apply to customer end-equipment that also relays service to other
    customers did not mean that "carriers may simply locate their
    hub-sites on the premises of a customer in order to avoid compliance
    with a legitimate zoning regulation." Rather, the protections apply
    when the equipment is installed in order to serve the customer on
    such premises. *Id.* at ¶17.

[^13]: 47 C.F.R. §1.4000(a)(2) (2004).