**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | ET Docket No. 05-247         |
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| Continental Airlines             | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** October 17, 2006 **Released:** November 1, 2006

By the Commission: Commissioners Copps and Adelstein issuing separate
statements.

# I. Introduction {#i.-introduction .unnumbered}

1.  In this Memorandum Opinion and Order, we address a Petition for
    Declaratory Ruling filed by Continental Number range level0Number
    range level1Number range level2Number range level3Number range
    level4Number range level5Number range level6Number range
    level7Airlines, Inc. (Continental) pertaining to its installation
    and use of a Wi-Fi antenna within its lounge at Boston-Logan
    International Airport (Logan Airport).[^1] 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.[^2] For the reasons
    stated below, we find that Massport's restrictions on Continental's
    use of its Wi-Fi antenna are pre-empted by the OTARD rules and we
    therefore grant Continental's petition.

# II. Background {#ii.-background .unnumbered}

2.  The Commission's OTARD rules prohibit restrictions on property that
    impair the use of certain antennas. For the OTARD rules to apply,
    the antenna must be installed "on property within the exclusive use
    or control of an antenna user where the user has a direct or
    indirect ownership or leasehold interest in the property" upon which
    the antenna is located.[^3] 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.[^4] 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.[^5] 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.[^6]

3.  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.[^7] This provision was part of
    the 1996 Act, which 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.[^8] 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.[^9]

4.  The OTARD rules, as originally adopted, applied only to antennas
    used to receive video signals. However, the OTARD rules were
    modified in 2000 by the Commission's *Competitive Networks*
    proceeding to apply to customer-end antennas serving customers on
    the premises that transmit and/or receive fixed wireless
    signals.[^10] Fixed wireless signals are defined to be "any
    commercial non-broadcast communications signals transmitted via
    wireless technology to and/or from a fixed customer location."[^11]
    Under the current rules, only a relatively few types of signals
    (such as amateur, AM and FM broadcast, and Citizens Band radio) are
    enumerated as being excluded from protection.[^12]

5.  When it extended the OTARD rules to apply to fixed wireless signals,
    the Commission concluded that distinguishing the protection afforded
    to the use of antennas based solely on the nature of services
    provided through an antenna produces "irrational" results.[^13] For
    example, the Commission cited a scenario in which a consumer who
    desires to receive only Internet service via an antenna would be
    forced to receive both Internet service and video programming to be
    protected by the prior OTARD rules, which would distort the
    competitive market. Thus, the Commission concluded that OTARD should
    not distinguish among services based on their nature (*e.g.*, voice,
    video, data) or among antennas based on their function (*i.e.*,
    transmit or receive, or both).[^14] Furthermore, the Commission
    found that applying a blanket rule against most restrictions on the
    placement of such antennas at a customer's site is consistent with
    the broad pro-competitive goals of the 1996 Act and the specific
    pro-competitive goals of the limitations on state and local
    regulation set forth in Section 332(c)(7) of the Communications
    Act.[^15] In particular, the Commission reasoned that, although it
    was preempting most state and local regulation on customer-end
    antennas, state and local regulation regarding the placement,
    construction and modification of "hub" antennas, which are used to
    transmit and/or receive signals from multiple customer locations and
    are not commonly located inside a customer premises, would continue
    to be governed under Section 332(c)(7).[^16]

6.  In a 2004 *Order on Reconsideration*, the Commission specified that
    the OTARD rules apply to 'customer-end' antennas that also relay or
    route signals to other customers, so long as they are used by the
    owner (*e.g.,* the 'tenant') primarily to provide service at the
    same location.[^17] The Commission observed in the *Competitive
    Networks Order on Reconsideration* that the equipment deployed in
    these networks share the same physical characteristics as other
    customer-end equipment, and that the only difference was the
    additional functionality of routing service to additional users. The
    Commission concluded that the OTARD protections also extend to such
    technologies when they otherwise meet the requirements of the rules.
    The Commission explained that the OTARD rules should not
    disadvantage more efficient technologies where each customer device
    also serves as a relay device, such as in point-to-point-to-point or
    mesh topologies.[^18]

# III. DiScussioN  {#iii.-discussion .unnumbered}

7.  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.[^19] Such a determination is
    highly dependant on the facts alleged by the parties involved.
    Consequently, we begin this discussion with a brief overview of the
    dispute between Continental and Massport. We then apply the
    requirements of the OTARD rules to the alleged facts to determine if
    Massport's restrictions are prohibited by OTARD while keeping in
    mind that the burden of demonstrating that a challenged restriction
    complies with the rule is on the party seeking to impose the
    restriction.[^20] Next, we address whether, as Massport claims, a
    safety exception under the OTARD rules applies therefore precluding
    Continental's Wi-Fi installation. Applicability of the safety
    exception would allow Massport to impose restrictions on
    Continental's use of its Wi-Fi antenna even though all the
    requirements of OTARD are otherwise satisfied. We also briefly
    discuss whether Massport has shown why it should otherwise be
    granted an exemption from OTARD. Finally, we address legal arguments
    Massport has made regarding the Commission's statutory authority to
    extend OTARD to fixed wireless signals and possible takings issues.

8.  We note that this is the first time the Commission has addressed a
    petition that involves the application of the OTARD rules to
    unlicensed devices that operate under Part 15 of our rules. The Part
    15 unlicensed devices include a great variety of radio frequency
    technologies, such as Continental's Wi-Fi device. The OTARD rules
    make no distinction between radio devices using licensed
    technologies and those using unlicensed technologies. The
    Commission's OTARD rules cover antennas used to send or receive
    "fixed wireless signals." Such fixed wireless signals may be sent
    and received by devices using either licensed or unlicensed
    technologies, and the same antenna may be used for both licensed and
    unlicensed transmissions. Just as the Commission noted in the
    *Competitive Networks* proceeding that it makes no sense to
    distinguish between identical antennas based on the services
    provided via the antenna, there is no justification for
    distinguishing between antennas based on whether they are used with
    licensed services or unlicensed devices.[^21] Hence we conclude that
    OTARD applies to the antennas of unlicensed devices operating under
    Part 15 of our rules to the same extent as to the antennas of
    licensed services.

## Overview of Dispute

9.  In July 2004, Continental installed a wireless Wi-Fi system in its
    "President's Club" frequent flyer lounge at Logan Airport.[^22] The
    Wi-Fi system is comprised of a Cisco 1200 wireless access point of
    the type commonly used by consumers that is connected to the
    Internet over a T-1 line that was pre-existing before installation
    of the Wi-Fi system.[^23] The system, which is located on a shelf in
    a closet within the lounge, is used to provide wireless Internet
    access to passengers and Continental's employees in the lounge.
    Passengers who have access to the frequent flyer lounge receive
    wireless Internet service via the Wi-Fi system for no additional
    charge. Passengers can obtain access to the lounge by a variety of
    means, including purchasing a club membership, showing a valid
    boarding pass and Platinum American Express Card, buying a book of
    passes, or by being a member of a partner airline's frequent flyer
    club.[^24] Certain Continental employees also have access to the
    lounge and are able to use the Wi-Fi system to receive wireless
    Internet service.[^25]

10. On June 10, 2005, Massport demanded that Continental remove the
    Wi-Fi system on the basis that it is prohibited by the terms of
    Continental's lease.[^26] Continental replied to Massport that the
    provisions of the lease prohibiting the Wi-Fi system could not be
    enforced because of the Commission's over-the-air reception device
    (OTARD) rules, 47 C.F.R. § 1.4000.[^27] Massport responded that the
    OTARD rules do not apply because of the availability of an
    airport-wide Wi-Fi backbone.[^28] Massport also asserted that
    Continental's Wi-Fi system was a potential source of interference to
    other communications including public safety communications.[^29]
    The airport Wi-Fi backbone was installed by Advanced Wireless Group
    (AWG) under contract with Massport.[^30] AWG operates the airport
    Wi-Fi backbone as a commercial enterprise while providing revenue to
    Massport.[^31] The airport Wi-Fi backbone provides service both to
    airport tenants for operational uses (*e.g*., baggage services) as
    well as the general public using the airport facilities.[^32] The
    general public can receive wireless Internet service over the Wi-Fi
    backbone in a number of ways.[^33] First, wireless Internet access
    is available for a fee of \$7.95 a day. Second, people with service
    from an Internet service provider with a roaming agreement with AWG
    can receive wireless Internet service at no additional cost. Third,
    an agreement can be negotiated directly between AWG and the tenant.

11. Continental filed a petition under the Commission's OTARD rules on
    July 7, 2005, and the petition was placed on public notice on July
    29, 2005.[^34] The Commission received more than 2300 comments. The
    Air Transport Association of America, American Airlines, Alliance
    for Public Technology, Cellular Telecommunications and Internet
    Association, Media Access Project, a group of six state public
    utility commissioners, Consumer Electronics Association, Enterprise
    Wireless Alliance, and T-Mobile, among others, filed in support of
    Continental's petition.[^35] Numerous brief comments (including more
    than 2000 single-paragraph responses) from individuals, many of whom
    identify themselves as frequent passengers of Continental, also
    express strong support for Continental's petition. The Airports
    Council International as well as a number of individual airport
    authorities filed comments in support of Massport's position.[^36]

## Application of the OTARD Rules

12. 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.[^37] 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.[^38] Lastly, the
    antenna must be used to receive or transmit fixed wireless
    signals.[^39] Massport concedes that Continental's Wi-Fi antenna
    satisfies the first condition, *i.e.*, the antenna is less than one
    meter in diagonal measurement. As described in more detail below, we
    find that the second and third conditions are also satisfied by
    Continental's Wi‑Fi antenna. We also find that the restrictions in
    the lease for the President's Club frequent flyer lounge
    unreasonably impair the use of Continental's OTARD-covered antenna,
    and that Massport has not demonstrated that any exemption from the
    OTARD rules applies here. Therefore, we conclude that the
    restrictions in the lease are preempted by the OTARD rules.

### Exclusive Use and Control

13. As noted above, Continental's Wi-Fi antenna is located in a closet
    within its President's Club frequent flyer lounge at Logan Airport.
    There is no dispute that Continental has a direct leasehold interest
    in the President's Club lounge.[^40] In addition to having a
    leasehold interest, the OTARD rules require that the antenna user
    have exclusive use and control of the location where the antenna is
    placed.[^41] The President's Club is a private lounge in which
    travelers may make use of amenities provided by Continental.[^42]
    Access to the lounge is restricted to parties who meet specific
    admission criteria as well as to Continental employees. There is no
    indication in the record that the lounge is not exclusively used and
    controlled by Continental. Accordingly, to the extent that
    Continental is using the antenna, the requirement that the antenna
    be located on property under the exclusive use and control of the
    antenna user where the antenna user has a direct or indirect
    leasehold in the property is satisfied.

14. Massport has noted that the terms of the lease for the President's
    Club lounge allow Massport access to the club for maintenance,
    security, construction work, or to place utilities in, over, or
    through the premises.[^43] This does not affect our conclusion with
    respect to the exclusive use and control element. The Commission has
    previously ruled that the rights of third parties to enter and/or
    exercise control over a property owner's exclusive-use area for such
    reasons as inspection or maintenance do not defeat the owner's
    rights under the OTARD rules.[^44] For example, in *Wojcikewicz* the
    owner of a townhome was found to have a right under the OTARD rules
    to install a rooftop antenna despite the fact that a homeowners
    association has responsibility for maintaining the roof.[^45] While
    prior Commission rulings on this issue are directed at property
    owners, the same result holds for leased property. The mere fact
    that a landlord has the right to enter leased property for
    maintenance or security purposes does not change our conclusion that
    Continental has exclusive use and control of the lounge.

15. Massport also asserts that Continental is not the antenna "user" for
    purposes of the OTARD rule. It argues that Continental's passengers
    (*i.e*., the President's Club members and other qualified users) are
    the primary, if not exclusive, "users" of the Wi-Fi antenna, and
    because those users do not have a leasehold interest in the lounge,
    the leasehold requirement has not been met.[^46] We disagree. The
    rules require that the party who installs an antenna and asserts
    rights under OTARD must have a leasehold interest in and exclusive
    use and control of the premises where the antenna is installed. It
    is Continental -- not the passengers -- 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 President's Club lounge and has exclusive use and control
    of the leased premises. That Continental's invitees also use the
    antenna does not alter the analysis. Continental is thus the antenna
    user for purposes of the OTARD rules and may assert that OTARD
    applies to its Wi-Fi antenna.

### Used to Receive or Transmit "Fixed Wireless Signals"

16. To be covered by OTARD, Continental's Wi-Fi antenna must transmit or
    receive fixed wireless signals, *i.e.*, "commercial non-broadcast
    communications signals transmitted via wireless technology to and/or
    from a fixed customer location."[^47] To meet this definition the
    communications signals sent or received by the Wi-Fi antenna must
    be 1) commercial, 2) non-broadcast, and 3) transmitted via wireless
    technology to and/or from a fixed customer location. Of these
    requirements, there is no dispute that the signals are
    non-broadcast. As discussed below, we find that the other two
    requirements -- that commercial signals be transmitted to and/or
    from a fixed customer location -- are also satisfied.

17. Massport argues that because Continental's passengers receive
    wireless Internet service in the lounge as a complimentary amenity,
    Continental "cannot now claim that it provides 'commercial'
    service."[^48] The rule does not, however, require that the antenna
    user provide a commercial "service." Rather, it requires that the
    antenna transmit or receive a commercial "signal." Whether or not
    Continental's passengers pay for receiving wireless Internet service
    has no bearing on whether the transmitted signals are commercial
    under the OTARD rules. Continental uses its Wi-Fi antenna to access
    a commercial Internet service that it receives over a wireline
    connection and uses the antenna to transmit those same commercial
    signals within the President's Club lounge. We therefore conclude
    that the Wi-Fi antenna is transmitting a commercial signal.[^49]

18. Massport argues that the OTARD rules apply only to fixed antennas
    used for signals originating or terminating outside of the leased
    premises.[^50] Massport's arguments are unconvincing. The OTARD
    rules do not require that antennas covered by OTARD transmit or
    receive signals from outside the user's premises. Instead the rules
    require that signals be transmitted to and/or from a "fixed customer
    location." According to the plain language of the rules, the signals
    can be both received *and* transmitted from within the customer
    location and still be "fixed wireless signals."

19. Massport, however, contends that the rules cannot be read to protect
    fixed antennas that function in this manner because the Commission's
    decision to extend OTARD rules to antennas used to transmit or
    receive fixed wireless signals was based on "the need for a customer
    to receive services from outside of its exclusive-use
    premises."[^51] Massport misunderstands the bases for the
    Commission's decision to extend the OTARD rules to such antennas,
    which was not limited to this one scenario. In the *Competitive
    Networks Report and Order*, the Commission stated that the rules
    were necessary to realize several statutory goals, including: (1)
    the promotion of competition and reduction of regulation to secure
    lower prices and higher quality services and encourage the rapid
    deployment of new technologies,[^52] (2) the encouragement of the
    deployment of advanced services,[^53] and (3) the furtherance of
    consumer protection measures.[^54] A lease provision prohibiting
    installation of an antenna that transmits and receives signals
    solely within a customer's leased premises would impede the full
    achievement of these important federal objectives, and thus falls
    within the scope of the Commission's decision. For example, the
    antenna deployed by Continental provides it with a wireless
    alternative to Massport's Wi-Fi network,[^55] enhances the quality
    of the Internet service received by Continental (by providing
    wireless distribution within the leased premises), and promotes the
    availability of advanced services. If Continental was unable to
    deploy the antenna, it would be forced to use Massport's Wi-Fi
    network to access Internet signals using Wi-Fi equipment rather than
    its own antenna in conjunction with its existing wireline Internet
    access. This result would disadvantage Continental's wireline
    Internet access provider, potentially raise the price Continental
    must pay for Wi-Fi access,[^56] reduce the utility of Continental's
    wireline Internet access, and, *ipso facto*, hinder the deployment
    of advanced services.

20. Massport also argues that Continental's Wi-Fi antenna is not covered
    by the OTARD rules because it is a "hub" antenna used to distribute
    service to others.[^57] When the OTARD rules were extended to
    antennas used to transmit and receive fixed wireless signals, the
    Commission determined that the protection of the OTARD rules applies
    only to antennas at a customer location for the purpose of providing
    fixed wireless services to one or more customers at that location,
    and that the OTARD rules would not cover "hub or relay antennas used
    to transmit signals to and/or receive signals from multiple customer
    locations."[^58] In excluding hub and relay antennas from the OTARD
    rules, the Commission acknowledged the "well-established rights of
    state and local governments under Section 332(c)(7) to regulate the
    placement, construction and modification of carrier hub sites" as
    "personal wireless service facilities" and made it clear that it was
    not seeking to circumvent those rights.[^59] The Commission provided
    further guidance in its *Competitive Networks Reconsideration
    Order*, clarifying that customer-end equipment possessing "the
    additional functionality of routing service to additional
    users,"[^60] would not be treated as a hub or relay antenna and
    thereby lose OTARD protection, so long as the equipment was
    "*installed in order to serve the customer on \[its\] premises*" and
    otherwise complied with all the rules' limitations (*e.g.*, antenna
    size).[^61] The Commission cautioned, however, that this
    clarification was not intended to allow carriers "simply \[to\]
    locate their hub-sites on the premises of a customer in order to
    avoid compliance with a legitimate \[Section 332(c)(7)-preserved\]
    zoning regulation."[^62] Rather, the Commission included routing
    functions within the ambit of customer-end antennas to account for
    "other types of deployment of advanced services \[that\] may no
    longer rely on the traditional configurations addressed in the
    *Competitive Networks \[Report and\] Order*,[^63] noting that,
    "\[f\]or purposes of the OTARD protections, the equipment deployed
    in such networks shares the same physical characteristics of other
    customer-end equipment, distinguished only by the additional
    \[routing\] functionality."[^64]

21. According to Massport, Continental's Wi-Fi antenna should be
    excluded from the OTARD rules because it was installed primarily as
    a hub to serve Continental's passengers rather than as a
    customer-end antenna intended to serve Continental. Massport asserts
    that Continental is using the antenna primarily to resell wireless
    Internet service to its passengers while in the President's Club
    lounge, who pay for the Internet service through their membership
    dues in the President's Club.[^65] This argument fails because use
    of an antenna to route signals strictly within an antenna user's
    premises does not constitute use of the antenna as a hub for
    distribution of services. 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.[^66] This is
    true even if invitees on the premises, such as houseguests or
    business customers, receive the signals, because the invitees are
    presumably present at the antenna user's invitation and for the
    antenna user's own purposes.[^67] In these circumstances,
    Continental cannot be considered a carrier that is trying to
    circumvent section 332(c)(7) by locating a hub site on the premises
    of a customer.[^68] Consequently, we find that the facts presented
    here -- which involve 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 -- does not turn
    Continental's Wi-Fi antenna into a hub antenna.

### Restrictions Unreasonably Impair Installation, Maintenance, or Use

22. The OTARD rules do not nullify all restrictions that impair the
    installation, maintenance and use of qualifying antennas. Rather, 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. We find that the restrictions contained
    in Massport's lease with Continental for the President's Club lounge
    unreasonably impair the use of Continental's antenna in at least two
    ways.

23. First, Massport claims that the terms of the lease require
    Continental to remove its Wi-Fi antenna from the President's Club
    lounge. The lease terms that Massport claims are violated by
    Continental's Wi-Fi antenna include provisions limiting use of the
    premises to the uses specified in the lease and a provision
    prohibiting the interference with the effectiveness of any
    communications system.[^69] If these lease provisions require that
    Continental discontinue use of or remove its Wi-Fi antenna, they
    would prevent the installation and use of a qualifying antenna.
    Restrictions that prevent installation and use of an antenna, *ipso
    facto*, impair its installation or use, and are preempted by the
    OTARD rules absent the application of some exception to the
    rules.[^70]

24. Second, the lease also prohibits making alterations to the leased
    premises without submitting an application to and receiving the
    prior approval of Massport.[^71] According to Massport this
    provision required Continental to request approval from Massport
    before installing its Wi-Fi antenna in the lounge and, because
    Continental did not do this, the lease was violated. Commission
    precedent is clear that prior approval requirements before
    installation of OTARD qualifying antennas are not permitted under
    the OTARD rules.[^72] These decisions are based on the conclusion
    that such pre-approval requirements unreasonably delay the
    installation of antennas and discourage people from attempting to
    use such antennas due to the added inconvenience and uncertainty
    they create.

25. While the only enumerated exceptions under OTARD are for safety and
    historic preservation, Massport argues that the restrictions in the
    lease do not impair installation or use of Continental's antenna
    because the airport Wi-Fi backbone qualifies under what it
    characterizes as a "central antenna exception" to the OTARD
    rules.[^73] The Commission has explicitly declined to adopt a
    central antenna exception to the OTARD rule. Instead, to the extent
    it is relevant, 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.[^74]

26. The Commission has consistently recognized that delay in access to
    services desired by an antenna user is relevant in determining the
    issue of impairment. Indeed, when it adopted the original OTARD
    rules, it prohibited the imposition of procedural hurdles, such as
    requiring a user to obtain permits or charging fees before
    installing an antenna. At the time, the Commission noted that these
    requirements would cause unreasonable delays in access to services
    for the purposes of OTARD.[^75] In the instant case, Massport and
    AWG made what they argue is an offer for comparable service eight
    months after Continental filed a petition with the Commission, and
    more than nine months after Massport demanded that Continental
    remove its antenna.[^76] The OTARD rules were adopted to enable
    access to competitive services -- a delay of nine months and an
    offer triggered only by an antenna user pursuing its legal remedies
    countervails the overarching policies of the OTARD rules and
    existing legal precedent, amounts to an effective denial of
    competitive access, and is thus an unreasonable impairment of
    antenna use for the purposes of OTARD.

27. Even if the access delay was not a factor here, we nevertheless
    would not be able to find that the provision of AWG\'s airport
    backbone under Massport\'s and AWG\'s most recent proposal would
    make reasonable Massport\'s restrictions on the installation and use
    of Continental\'s antenna. If Continental were required to use this
    backbone, it would be denied the ability to choose its own service
    provider and would be limited to whatever type of services, level of
    network security, quality of service, and signal strength that
    Massport's contractor, AWG provided, and to the cost and timeframe
    at which AWG chose to provide the service. Thus, Continental would
    be impaired in its efforts to obtain the terms and quality of
    service that it desires. Furthermore, the record indicates that
    several key factors, such as cost and service quality are still in
    dispute. [^77] For example, even with AWG's latest offer,
    Continental's cost of using AWG's service as compared with its own
    antenna, may actually be higher since the offer is for 1000 hours of
    Internet service at a fixed price and Continental's actual usage may
    be higher now or at some point in the future.[^78] Thus, in this
    context, the central antenna option now being offered by Massport
    and AWG is insufficient to meet Massport's burden of demonstrating
    that the restrictions in the lease do not unreasonably impair
    Continental's use of its own Wi-Fi antenna.[^79]

### Safety Exception

28. Massport claims that the restrictions in its lease qualify for the
    safety exception to the OTARD rules.[^80] According to Massport, the
    Massachusetts State Police plans on using the airport Wi-Fi backbone
    for communications in the future and the Transportation Safety
    Authority (TSA) has conducted a trial using the airport Wi-Fi
    backbone.[^81] Massport also asserts that Continental's Wi‑Fi
    antenna may cause interference to the airport Wi-Fi backbone.
    Consequently, Massport argues that Continental's Wi‑Fi antenna may
    cause interference to future public safety communications, and that
    the restrictions in the lease are therefore necessary to accomplish
    a legitimate safety objective. Massport misreads the purpose of the
    safety exception in our rules, and misconstrues the applicable
    regulatory framework governing the operation of Part 15 devices,
    such as Continental's Wi-Fi system, the airport Wi-Fi backbone, and
    Wi-Fi systems operated by other airlines at Logan Airport.[^82] The
    spectrum used by these unlicensed Wi-Fi systems may be used by any
    type of unlicensed device that meets the Commission's rules. The
    Commission has authorized a wide variety of consumer products for
    this frequency band, including Bluetooth devices, ad hoc wireless
    local area network devices, RF ID devices, cordless telephones, etc.
    All of these devices operate under the conditions that they may not
    cause harmful interference and must accept any interference
    received, including interference caused by other unlicensed
    devices.[^83]

29. The safety exception addresses potential dangers to the physical
    safety and health of the public and not interference to other radio
    device users. The fact that this exception is directed at physical
    safety is evident from the OTARD rules' language which requires that
    the antenna restrictions falling within the safety exception apply
    to other "appurtenances, devices, or fixtures that are comparable in
    size and weight and pose a similar or greater safety risk as these
    antennas."[^84] This general applicability requirement is
    inconsistent with Massport's view that radio-frequency (RF)
    interference concerns fall within the public safety exception,
    because devices or fixtures other than antennas do not pose a RF
    interference safety risk that is similar to or greater than that of
    an antenna. In adopting the safety exception, the Commission
    explained the safety exception in physical terms, identifying such
    hazards as interference with the line of sight at an intersection,
    inadequate bolting or guying of antennas, and obstructing fire
    exits, as well as compliance with our RF emissions standards and
    local health regulations.[^85] Our prior declaratory rulings have
    applied the safety exception only to physical safety issues.[^86]
    Under the Communications Act of 1934, as amended, the Commission
    holds exclusive jurisdiction over the regulation and resolution of
    RF interference issues.[^87] In short, the safety exception concerns
    health and physical safety and is simply inapplicable to complaints
    of potential RF interference with other radio devices. Accordingly,
    we find that Massport has not stated a legitimate safety objective
    for purposes of the OTARD safety exception.

30. Even if the OTARD safety exception did apply to RF interference
    issues, the safety exception would still not apply here because the
    Wi-Fi device that Continental is using in the President's Club
    operates as permitted under Part 15 of our rules.[^88] Part 15
    specifies power levels, frequency bands, and conditions under which
    devices may transmit RF signals without requiring a license.[^89]
    Part 15 devices do not receive interference protection from other
    Part 15 devices. Therefore, because Massport's airport Wi-Fi
    backbone is composed of Part 15 devices, Massport has no right to
    operate the airport Wi-Fi backbone free from interference from other
    Part 15 devices, including Continental's Wi-Fi device. Likewise,
    Continental has no right to operate its Wi-Fi device without
    interference from the airport Wi-Fi backbone. Moreover, this holds
    true for any other Part 15 device users in the airport. Although
    Logan airport may desire to use the airport Wi-Fi backbone for
    public safety communications at some future time, this fact has no
    bearing on our present inquiry. The type of traffic carried by the
    backbone does not change the application of Part 15 of our rules.
    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.

### Special Exemption

31. Massport notes that the Commission has never enforced the OTARD
    rules in a government building and questions the applicability of
    competitive access requirements, such as the OTARD rules, to
    airports.[^90] Even if the Commission believes that the OTARD rules
    would otherwise apply in this situation, Massport asks that the
    Commission include airports in an exemption of special-use
    facilities from the OTARD rules.

32. The OTARD rules have no express exception for governmental entities,
    and we find no reason to withhold application of the OTARD rules, as
    a general matter, to state and local government entities that are
    acting in a proprietary capacity as landlords. Massport relies on
    safety concerns and its overall management responsibilities to
    support its contention that is should be exempted fails to
    demonstrate that it should be exempted in this case.[^91] However,
    as noted above, the safety exception is inapplicable here, and it
    has made no showing that its management responsibilities relating to
    antenna siting differ materially from those of any other landlord.
    Massport makes much of the fact that the Commission has not applied
    OTARD to college dormitories and argues that airports share similar
    characteristics. However, the exclusion of college dormitories was
    based on the fact that a college dormitory residence is not a
    leasehold and that the relationship of a university to a student is
    not the same as the relationship between a landlord and a
    tenant.[^92]

## Legal Issues

33. Massport has raised two legal issues regarding the application of
    the OTARD rules to the present situation. Massport has challenged
    the Commission's statutory authority to apply the OTARD rules to
    antennas that transmit and receive fixed wireless signals. Massport
    also claims that applying the OTARD rules in this situation would
    result in an unconstitutional taking of property.

### Statutory Authority

34. Massport argues that the Commission did not have the statutory
    authority to extend OTARD to fixed wireless signals.[^93] According
    to Massport, the Commission's authority to regulate restrictions on
    OTARD devices is limited to the authority specified in Section 207
    of the 1996 Telecommunications Act, the Commission has no other
    express statutory authority to regulate the siting of antennas, and
    it has no ancillary jurisdiction over the siting of Wi-Fi antennas
    used for wireless Internet access.[^94] Although the Commission
    previously determined that it has such jurisdiction in the
    *Competitive Networks Report and Order*, we nevertheless address
    Massport's arguments below.

35. The Commission specifically addressed and rejected Massport's first
    argument -- that in promulgating Section 207 of the 1996
    Telecommunications Act, Congress limited the Commission's authority
    to preempt state and local restrictions on the siting of wireless
    antennas to the promulgation of rules that would enable viewers to
    receive certain video programming services.[^95] Section 207
    provides that, "\[w\]ithin 180 days after the date of enactment of
    this Act, the Commission shall, pursuant to section 303 of the
    Communications Act of 1934, promulgate regulations to prohibit
    restrictions that impair a viewer's ability to receive" certain
    video programming services.[^96] In the *Competitive Networks Report
    and Order*, the Commission concluded that this "statutory language
    reflects Congress' recognition that, pursuant to Section 303, the
    Commission has always possessed authority to promulgate rules
    addressing OTARDs."[^97] Massport argues, however, that if the
    Commission is correct in asserting that it already had the authority
    under Section 303 to promulgate such regulations (and extend them to
    services other than those listed in Section 207), then all of
    Section 207, except for the introductory clause regarding timing,
    would constitute extraneous language.[^98] Citing the principle of
    statutory construction that would reject such an interpretation if
    another construction would give effect to all of the provision's
    language, Massport therefore concludes that Section 303 cannot be
    the source of substantive authority for the OTARD rules.[^99]
    Consequently, Massport's reading of Section 207 is that the
    provision constitutes the Commission's sole source of substantive
    authority to promulgate OTARD regulations, and that the Commission
    is limited to the provisions' four corners.[^100]

36. Massport's argument fails at the outset because it relies on an
    erroneous characterization of Section 207. Rather than limiting the
    meaning of the provision to a timing instruction, we made it clear
    in the *Competitive Networks Report and Order* that Section 207
    places *two* distinct obligations on the Commission that qualify our
    general authority over antenna siting.[^101] Specifically, Section
    207 creates (1) a requirement to promulgate the specified preemption
    regulation, and (2) a deadline for taking this action. However,
    contrary to Massport\'s argument, a requirement that an agency
    *must* promulgate a specified regulation within a particular time
    frame in no way implies that the agency previously did not possess
    the discretionary authority to implement the specified regulation in
    question. As a result, Section 207 was in no way superfluous merely
    because the Commission already possessed the authority to implement
    OTARD rules.

37. Moreover, 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. Although Section 207
    required the Commission to promulgate rules protecting certain
    devices within a certain period, nothing in Section 207 prohibits
    the Commission from exercising its authority pursuant to Section 303
    and other provisions to protect the siting of other antennas that
    receive or transmit other types of signals.[^102] To the contrary,
    Congress enacted Section 207 against a backdrop of prior Commission
    antenna siting regulation,[^103] yet Section 207 contains no
    language reflecting Massport's view that Congress intended the
    provision to supplant the bases for such regulation and become the
    exclusive source of the Commission's authority to engage in antenna
    siting regulation and preemption. And as we observed in the
    *Competitive Networks Report and Order*, the Commission not only
    exercised this type of authority before Congress promulgated Section
    207, but has also exercised it since.[^104]

38. Furthermore, the Commission's authority under Section 303 to
    regulate antenna siting has an express basis. While Massport
    stresses our reliance on Section 303(r), we observe that Congress
    did not direct the Commission in Section 207 to promulgate
    regulations specifically pursuant to that subsection. Rather,
    Congress directed the Commission to promulgate regulations pursuant
    to Section 303 without limitation. Although the Commission relied
    upon both Sections 303(r) and 4(i) of the Act as bases for exercise
    of its ancillary jurisdiction in the *Competitive Networks Report
    and Order*,[^105] Section 303(d) provides the Commission with
    express statutory authority to regulate antenna siting.
    Specifically, Section 303(d) states that "the Commission from time
    to time, as public convenience, interest or necessity requires shall
    . . . \[d\]etermine the location of classes of stations or
    individual stations."[^106] The Act defines the terms "radio
    station" or "station" as "a station equipped to engage in radio
    communication or radio transmission of energy."[^107] "Radio
    communication" is in turn defined as "the transmission by radio of
    writing, signs, signals, pictures, and sounds of all kinds,
    including all instrumentalities, facilities, apparatus, and services
    (among other things, the receipt, forwarding, and delivery of
    communications) incidental to such transmission."[^108] These broad
    definitions of radio stations and radio communications encompass the
    antennas subject to the Commission's OTARD rules, and the
    Commission's authority to determine the locations of radio stations
    pursuant to Section 303(d) includes the authority to preempt
    restrictions that interfere with that authority.[^109]

39. In addition to challenging the Commission's express authority to
    regulate antenna siting, Massport argues that the statutory
    provisions the Commission used to support extension of the OTARD
    rules to fixed wireless signals in the *Competitive Networks Report
    and Order* "are inadequate bases for its attempt to regulate antenna
    siting, especially the siting of Wi-Fi antennas."[^110] Although we
    believe the Commission has express authority to regulate such
    antenna siting pursuant to Section 303(d), as discussed above, 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.[^111] The Commission concluded that
    extension of its OTARD rules to antennas used for fixed wireless
    signals was necessary to realize the statutory goals embodied within
    these sections, and that Sections 303(r) and 4(i) of the Act provide
    the bases for exercise of the Commission's ancillary
    jurisdiction.[^112] Furthermore, the *Order on Reconsideration*
    reaffirmed these bases for statutory authority.[^113]

40. Massport relies on *American Library Association v. FCC*, 406 F.3d
    689 (2005), for the assertion that the Commission only has ancillary
    authority over devices for radio communications while the device is
    engaged in communication.[^114] According to Massport, under the
    court's holding, the act of installing an antenna, which does not
    occur while the radio device is actually engaged in communications,
    does not constitute "communication by wire or radio" under Section 1
    of the Communications Act.[^115] Consequently, Massport concludes
    that the Commission's ancillary jurisdiction does not extend to the
    installation of OTARD-covered antennas.[^116] Massport misreads the
    court's holding in *American Library*, which does not apply to
    antenna siting. In *American Library*, the court reviewed the
    Commission's authority to adopt requirements that television
    receivers recognize an indicator within the television signal
    (called a "broadcast flag") that would prohibit the receiver from
    redistributing the received television signal.[^117] The court
    concluded that the Commission's "general jurisdictional grant does
    not encompass the regulation of consumer electronics products that
    can be used for receipt of wire or radio communication when those
    devices are not engaged in the process of radio or wire
    transmission."[^118] The court reasoned that the television
    receivers were not engaged in the process of radio or wire
    transmission when processing the broadcast flag because the
    Commission's order did "not require demodulator products to give
    effect to the broadcast flag until *after* the DTV broadcast has
    been completed."[^119] In contrast, regulation specifying the
    required or permitted physical characteristics of antennas,
    including their location, is an integral and necessary part of any
    communication by radio -- without a properly sited antenna, radio
    communication is not possible. Thus, when the Commission prescribes
    the physical attributes of an antenna, such as its installation,
    maintenance, and use, the purpose and effect of the restriction is
    to act directly on the transmission and reception of the signals
    during the course of communication. Accordingly, the regulation of
    antenna installation, maintenance, and use is reasonably ancillary
    to the authority delegated to the Commission by Section 1 and is
    therefore within the scope of the Commission's ancillary
    jurisdiction.

41. Massport also argues that Sections 201(b), 202(a), and 205(a) of the
    Act do not provide the Commission with bases for ancillary
    jurisdiction over Wi-Fi antennas used to provide information
    services because these provisions are limited to common carrier
    services.[^120] The Commission did not, however, limit the bases for
    its exercise of ancillary jurisdiction to these provisions. The
    Commission's analysis relied on various provisions (*e.g.*, Section
    1 of the Communications Act) that are applicable to a variety of
    services, including telecommunications services and information
    services, and found "that the same types of restrictions on the same
    types of antennas unreasonably restrict deployment regardless of the
    services provided."[^121] The Commission's jurisdictional analysis
    is therefore sufficient to encompass Wi-Fi antennas providing
    information services, even if Massport's assertion regarding the
    scope of Sections 201(b), 202(a), and 205(a) is correct.

42. Finally, Massport asserts that the Commission has no authority to
    preempt its restrictions on Continental's Wi-Fi antenna use. In
    terms of the rules themselves, Massport suggests that the Commission
    did not intend to preempt such restrictions in private lease
    agreements when it extended the OTARD rules to fixed wireless
    signals.[^122] The Commission did not, however, intend to restrict
    the OTARD rules in this manner; they clearly apply to private lease
    agreements. The OTARD rules expressly apply to "contract
    provision\[s\]" and "lease provision\[s\],"[^123] including leases
    relating to fixed wireless antennas.

43.  Massport also contends that the Commission lacks preemptive
    authority over a state or local government acting in its proprietary
    capacity.[^124] Given that the Commission intended to preempt
    restrictions in private lease agreements, however, Massport would be
    preempted even if it is acting in a private capacity with regard to
    its lease agreement with Continental. 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 Supreme Court
    recognized this principle in *Building and Construction Trades
    Council v. Associated Builders & Contractors of Massachusetts/Rhode
    Island, Inc.*, 507 U.S. 218 (1993) (commonly referred to as "*Boston
    Harbor*"), when it held that a state agency, acting in a private
    capacity as the owner of a construction project, was entitled to the
    same regulatory treatment as a purely private company:

    In the absence of any express or implied indication by Congress that
    a State may not manage its own property when it pursues its purely
    proprietary interests, *and where analogous private conduct would be
    permitted*, this Court will not infer such a restriction.[^125]

44. In *Boston Harbor*, the Court was faced with the converse of what we
    are considering here today. There, the federal agency (the National
    Labor Relations Board) had attempted to restrict a state agency's
    actions under a labor agreement that the state agency had entered
    into in a private capacity, where there would have been no such
    restrictions if the state agency had been a private company. The
    Court resolved the case by holding that the state agency was
    entitled to the same treatment as a private concern. Here, the
    treatment at issue is a restriction rather than a benefit -- that
    is, whether Massport, if acting in a private capacity, should be
    bound by the same restrictions that would apply to a private firm.
    While the specific treatment may differ, *Boston Harbor* provides no
    basis for distinguishing the approach toward Massport; to the extent
    Massport is acting in a private capacity, it should be bound by the
    same restrictions that would apply to a private company.

45. Similarly, Massport's reliance on *Sprint Spectrum L.P. v. Mills*,
    283 F.3d 404 (2d Cir. 2002), is misplaced to the extent that
    Massport asserts that that its lease agreement is not subject to FCC
    regulation merely "because it is a voluntary lease agreement between
    private parties."[^126] The court in *Sprint* held that a school
    district could enforce stricter-than-FCC radio frequency ("RF")
    emissions limits against a wireless telecommunications provider,
    when the school district had bargained for those limits --
    memorialized in a lease regarding the use of a specific high
    school's rooftop -- in its private capacity as a lessor. The court
    ruled that the school district's lease was enforceable not simply
    because the district was acting in a private capacity, but because
    the court could discern no restrictions under the law on the right
    of private individuals to agree in a lease to the stricter RF
    limits:

    Since, so far as we are aware, nothing in the law requires a
    communications company to operate at the FCC Guidelines maximum
    permissible radiation exposure levels, the private owner could elect
    to not to grant a communications company a lease for the
    construction and operation of a cellular tower unless the company
    agreed to limit its RF emissions to a lower level. To the same
    extent, the School District as a public entity, sought out by the
    company only in the District's capacity as property owner, is
    permitted to do the same."[^127]

46. While the court in *Sprint Spectrum* did conduct a preemption
    analysis, that analysis focused on whether Congress had preempted
    governmental action when conducted in a private capacity. Once the
    court found that there had been no such preemption, the question
    turned to whether such conduct was generally prohibited or
    regulated. In *Sprint Spectrum*, it was not. In contrast, here, the
    Commission's regulations prohibiting the antenna restrictions in
    Massport's lease with Continental apply to all lease agreements,
    whether involving a governmental entity or purely private parties.
    Accordingly, Massport's characterization of its relationship with
    Continental as a private contractual matter does not absolve
    Massport from compliance with the OTARD regulations, provided the
    Commission has the authority to regulate private individuals in this
    manner. As discussed below, the Commission does indeed have this
    authority.

47. The Commission has already specifically addressed and rejected
    Massport's argument that the Commission lacks authority to extend
    the OTARD rules to leased property.[^128] In the *Competitive
    Networks Order on Reconsideration*, the Commission relied on the
    court's decision in *Building Owners and Managers Association
    International* v. *Federal Communications Commission*, 254 F.3d 89
    (D.C. Cir. 2001) ("*BOMA*"), in which 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 of signals from television broadcasting, direct broadcast
    satellite, and wireless cable services. Citing Sections 303(v) and
    207 of the 1996 Telecommunications Act, the court concluded that
    Congress had vested the Commission with exclusive jurisdiction and
    authority to ensure that all viewers can access direct-to-home
    satellite services and to prohibit restrictions that would impair
    such access, and that, in asserting jurisdiction over parties who
    might directly impose such restrictions, the Commission may alter
    property rights created under State law.[^129] In providing the
    Commission with this mandate, Congress did not strip the agency of
    the broader authority to regulate antenna installation that it has
    been given in the Communications Act and related statutes. Thus, the
    D.C. Circuit observed that "\[t\]he 1996 Act left undisturbed the
    broad statutory directives contained in the Communications Act of
    1934, including the Commission's mandate to 'make \[communications
    services\] available . . . to all the people of the United States,'
    47 U.S.C. § 151, and the Commission's authority to 'perform any and
    all acts, make such rules and regulations, and issue such orders . .
    . as may be necessary in the execution of its function.' *Id.* §
    154(i)."[^130]

48. 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.[^131] As we observed in the
    *Competitive Networks Order on Reconsideration*, the statutory
    underpinnings of the OTARD rules for fixed wireless services reflect
    a clear congressional intent that the Commission "have jurisdiction
    over any party imposing restrictions that the Act sought to
    eliminate," such as restrictions on the siting of consumer-end fixed
    wireless antennas.[^132] Congress has vested the Commission with
    express jurisdiction to determine the locations of antenna
    installations, including fixed wireless antennas, pursuant to
    Section 303(d), as well as ancillary authority pursuant to Sections
    1, 201(b), 202(a) and 205(a) of the Communications Act, and both the
    Preamble to and Section 706 of the 1996 Telecommunications Act.
    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 as
    well as the policies embodied in these sections. 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. Accordingly, we
    conclude, consistent with the D.C. Circuit's decision in *BOMA*,
    that the Commission has ample authority to prohibit private leasing
    restrictions that would impair installation of fixed wireless OTARD
    antennas like Continental's.

49. In sum, no arguments that Massport has made give us reason to change
    our earlier conclusions that the Commission has statutory authority
    in these circumstances.

### Takings

50. Massport asserts that the application of OTARD to Continental's
    Wi-Fi antenna would be an impermissible taking of private property
    in violation of the Fifth Amendment of the United States
    Constitution.[^133] According to Massport, the use of the Wi-Fi
    antenna would necessarily require the connection of the antenna to
    an Internet service provider via wire or cable through common and
    restricted areas of the airport. Consequently, Massport argues that
    allowing Continental to place wires or cables in common areas would
    result in a taking of Massport's property.

51. As the Commission explained when expanding the OTARD rules to leased
    property, the placement of antennas within a leased area that is
    within the exclusive use and control of a tenant is not a physical
    taking,[^134] and the U.S. Court of Appeals for the D.C. Circuit has
    affirmed this conclusion in the face of *per se* takings
    challenges.[^135] The application of the OTARD rules to areas not
    within the tenant's exclusive use and control is not at issue here
    because Continental has only petitioned us to allow placement of a
    Wi-Fi antenna within the President's Club lounge, and the cabling
    Continental uses to connect its Wi-Fi system to an Internet service
    provider was installed prior to Continental's installation of the
    Wi-Fi system at issue.[^136] Accordingly, we need not address the
    placement of wiring or cables in areas outside the exclusive use and
    control of the tenant.

52. Massport also claims that allowing Continental to place a Wi-Fi
    antenna in the President's Club lounge would be an impermissible
    regulatory taking of its property rights. Specifically, Massport
    notes that granting Continental's petition would not advance the
    goals of the 1996 Act; would cause it economic harm by requiring
    Massport to devote substantial resources to monitor the installation
    of tenant's antennas and decrease the revenue of the airport Wi-Fi
    backbone; and would interfere with the expectation that Massport
    would generate sufficient revenue to offset operating cost of the
    airport.[^137]

53. Courts determine whether a government entity has engaged in a
    regulatory taking by examining three factors: (1) the character of
    the government action; (2) its economic impact; and (3) its
    interference with reasonable investment-backed expectations.[^138]
    In this instance, the character of the government action is strongly
    in favor of finding that there is no regulatory taking because, as
    explained above, applying the OTARD rules in this situation will
    promote the important government interest of increasing competition
    and encouraging the deployment of advanced communication technology.
    As noted above, Wi-Fi devices such as those used by the airport
    Wi-Fi backbone are Part 15 devices that have no expectation or right
    to interference-free operation. Similarly, a party can hold no right
    or expectation that it will be able to operate its Part 15 devices
    without economic competition from other Part 15 devices. Hence, any
    economic harm resulting from interference to the airport Wi-Fi
    backbone or from Continental's passengers and employees using
    Continental's Wi-Fi instead of the airport Wi-Fi backbone need not
    be considered. Furthermore, neither Massport nor AWG have any
    reasonable expectation or right to generate revenue from the use of
    unlicensed spectrum. Therefore we conclude that granting
    Continental's petition will not result in a regulatory taking of
    Massport's property rights.

# IV. Ordering clauses {#iv.-ordering-clauses .unnumbered}

54. Accordingly, IT IS ORDERED that, pursuant to Section 1.4000(d) of
    the Over-the-Air Reception Devices Rule, 47 C.F.R. § 1.4000(d), and
    Section 1.2 of the Commission\'s rules, 47 C.F.R. § 1.2, that the
    Petition for Declaratory Ruling filed by Continental Airlines, Inc.
    on July 8, 2005 is GRANTED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

Re: Continental Airlines; Petition for Declaratory Ruling Regarding the
Over-the-Air Reception Devices (OTARD) Rules, *Memorandum Opinion &
Order.*

Today's declaratory ruling reaffirms the Commission's dedication to
promoting the widespread deployment of unlicensed Wi-Fi devices. It
clarifies that American consumers and businesses are free to install
Wi-Fi antennas under our OTARD rules -- meaning without seeking approval
from their landlords -- just as they are free to install antennas for
video programming and other fixed wireless applications.

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.

Today's decision ensures that the Wi-Fi bands remain free and open to
travelers, who can make productive use of their time while waiting to
catch their next flight in an airport. They will be able to choose from
among multiple providers, including members-only airport lounges as well
as coffee shops or businesses that may choose to attract customers by
offering Wi-Fi service at lower prices than the airport authority
offers.

I do want to note that I approve of today's decision only because the
record is clear -- in fact, uncontested -- that allowing multiple Wi-Fi
operators in the airport will cause no interference to the
safety-of-life communications that the airport authority conducts on its
dedicated, separate, and licensed public safety channels. In the
unlikely event that technical developments change this balance, I would
of course support swift and forceful remedial action from this
Commission.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

Re: Continental Airlines; Petition for Declaratory Ruling Regarding the
Over-the-Air Reception Devices (OTARD) Rules*, Memorandum Opinion and
Order*

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.

In this vein, I support the application of our OTARD rules to unlicensed
devices under Part 15 of our rules because these devices transmit and
receive fixed wireless signals as is required by OTARD. That Part 15
services are "unlicensed" does not mean that they should be treated
differently than "licensed" ones for purposes of our OTARD rules.

Of course, I am sensitive to the operational challenges presented by
airport environments. And the Commission has in place numerous services
and rules that allow for licensed communications by public safety and
commercial entities alike in these locales. To the extent there is an
interference problem with these licensed operations, particularly those
involving public safety services, we should quickly step in.

But these same protections can not and should not extend to WiFi use.
While unlicensed services are ubiquitous, WiFi users are not able to
claim the same interference protection typically afforded licensed
operators. It's an important tradeoff, and a critical one. As we affirm
today, WiFi users can freely deploy their networks in areas under their
control, but, in return, must accept interference from other WiFi
operators.

[^1]: *Petition of Continental Airlines for a Declaratory Ruling*, ET
    Docket No. 05-247, filed July 8, 2005; Supplement to Petition of
    Continental Airlines, Inc. for a Declaratory Ruling, ET Docket No.
    05-247, filed July 27, 2005.

[^2]: 47 C.F.R. § 1.4000.

[^3]: 47 C.F.R. § 1.4000(a)(1).

[^4]: *Id.*

[^5]: 47 C.F.R. § 1.4000(a)(3).

[^6]: 47 C.F.R. § 1.4000(b).

[^7]: Telecommunications Act of 1996, Pub.L. No. 104-104, § 207, 110
    Stat. 56 (1996); 47 C.F.R. § 1.4000; Preemption of Local Zoning
    Regulation of Satellite Earth Stations; Implementation of Section
    207 of the Telecommunications Act of 1996; and Restrictions on
    Over-the-Air Reception Devices: Television Broadcast Service and
    Multichannel Multipoint Distribution Service, *Report and Order,
    Memorandum Opinion and Order, and Further Notice of Proposed
    Rulemaking*, CS Docket No. 96-83, 11 FCC Rcd 19276 (1996).

[^8]: Implementation of Section 207 of the Telecommunications Act of
    1996 and Restrictions on Over-the-Air Reception Devices: Television
    Broadcast Service and Multichannel Multipoint Distribution Service,
    *Second Report and Order*, CS Docket No. 96-83, 13 FCC Rcd 23874,
    23880-91 ¶¶ 12-32 (1998).

[^9]: *Blg.* *Owners & Managers Ass'n Int'l v. FCC,* 254 F.3d 89, 93-96
    (D.C. Cir. 2001)*.*

[^10]: *See* 47 C.F.R. § 1.4000 (a)(1)(ii)(A); Promotion of Competitive
    Networks in Local Telecommunications Markets, *First Report and
    Order and Further Notice of Proposed Rulemaking*, *Fifth Report and
    Order and Memorandum Opinion and Order, Fourth Report and Order and
    Memorandum Opinion and Order*, WT Docket No. 99-217, 15 FCC Rcd
    22983, 23027-28 ¶¶ 97-100 (2000) (*Competitive Networks Report and
    Order)*. Because Section 207 of the 1996 Act is written in the
    context of video programming services, the Commission concluded that
    a number of other substantive statutory provisions --- specifically
    Sections 1, 201(b), 202(a), 205(a), and 303(r) of the Communications
    Act, as well as the Preamble to and Section 706 of the 1996 Act ---
    embodied goals that would be furthered by application of the OTARD
    rules to antennas that transmit and/or receive fixed wireless
    signals. *Id*., 15 FCC Rcd at 23028-35 ¶¶ 101-116.

[^11]: 47 C.F.R. § 1.4000 (a)(2).

[^12]: *Id*.; *see also Competitive Networks Report and Order,* 15 FCC
    Rcd at 23027 ¶ 97 n.251 (noting that amateur radio antenna placement
    is addressed by other rules, but not otherwise discussing the
    exclusion of these specific types of signals).

[^13]: *Competitive Networks Report and Order,* 15 FCC Rcd at 23027 ¶
    98.

[^14]: *Id.,* 15 FCC Rcd at 23027-28 ¶ 98-99.

[^15]: *Id.,* 15 FCC Rcd at 23034 ¶ 114. Section 332(c)(7) allows state
    and local governments to exercise zoning authority, with certain
    limitations, over the placement of personal wireless service
    facilities. 47 U.S.C. § 332(c)(7).

[^16]: *Competitive Networks Report and Order,* 15 FCC Rcd at 23032-33
    ¶¶ 109-110.

[^17]: Promotion of Competitive Networks in Local Telecommunications
    Markets, *Order on Reconsideration*, WT Docket No. 99-217, 19 FCC
    Rcd 5637, 5643-44 ¶¶ 13-18 (2004) (*Competitive Networks
    Reconsideration Order*).

[^18]: *Id*., 19 FCC Rcd at 5643 ¶¶ 13, 16. In these technologies a
    customer antenna not only receives or sends signals destined for or
    created by the customer but also routes signals to and from other
    customer antennas.

[^19]: 47 C.F.R. § 1.4000(e). Copies of the petition and all responsive
    pleadings must be served on all interested parties. 47 C.F.R. §
    1.4000(e),(f). Responsive pleadings must be filed and served on the
    interested parties within 30 days after the Commission releases a
    public notice that the petition has been filed. 47 C.F.R. §
    1.4000(e). Replies must be filed and served on all interested
    parties within 15 days thereafter. *Id*. All allegations of fact
    contained in petitions and related pleadings must be supported by an
    affidavit of a person with actual knowledge of the alleged facts. 47
    C.F.R. § 1.4000(h).

[^20]: 47 C.F.R. § 1.4000(g).

[^21]: *Competitive Networks Report and Order,* 15 FCC Rcd at 23027 ¶
    98. In 2004, the Commission explained that OTARD should not
    disadvantage more efficient technologies such as
    point-to-point-to-point and mesh topologies by prohibiting covered
    antennas from routing signals to other customers. *Competitive
    Networks Order on Reconsideration*, 19 FCC Rcd at 5643 ¶ 16. These
    point-to-point-to-point and mesh architectures are being actively
    developed and deployed to provide service on both a licensed and
    unlicensed basis. *See also* Commission Staff Clarifies FCC's Role
    Regarding Radio Interference Matters and Its Rules Governing
    Customer Antennas and Other Unlicensed Equipment, *Public Notice*,
    DA 04-1844, June 24, 2004.

[^22]: *Reply Comments of Continental Airlines, Inc*., ET Docket No.
    05-247, filed October 13, 2005, Exhibit A ¶ 2.

[^23]: *Id*. at Exhibit B ¶ 2-3.

[^24]: *Id*. at Exhibit A ¶ 2.

[^25]: *Id*.; *Supplement to Petition of Continental Airlines, Inc. for
    a Declaratory Ruling*, ET Docket No. 05-247, filed July 27, 2005,
    2-3.

[^26]: *Petition of Continental Airlines, Inc. for a Declaratory
    Ruling*, ET Docket No. 05-247, filed July 8, 2005, Exhibit A (letter
    from Massport to Continental of June 10, 2005).

[^27]: *Id*. at Exhibit B (lette

[^28]: r from Continental to Massport of June 23, 2005).

    ^?^ *Id*. at Exhibit C (letter from Massport to Continental of July
    5, 2005).

[^29]: *Id*.

[^30]: *Comments of the Massachusetts Port Authority*, ET Docket 05-247,
    filed September 28, 2005, 11.

[^31]: *Id*. at 12-13, 19 n.44; *Ex parte Comments of the Massachusetts
    Port Authority*, ET Docket No. 05-247, filed December 16, 2005, 22.

[^32]: AWG has installed approximately 245 wireless access points
    throughout the airport. *Comments of the Massachusetts Port
    Authority*, ET Docket No. 05-247, filed September 28, 2005, 12.

[^33]: *Id*. at 18-20.

[^34]: *Petition of Continental Airlines for a Declaratory Ruling*, ET
    Docket No. 05-247, filed July 8, 2005; *Public Notice*, ET Docket
    No. 05-247, DA 05-2213, July 29, 2005.

[^35]: Comments and *ex parte* presentations supporting Continental were
    also filed by the Wireless Infrastructure Association, United Parcel
    Service, and Partners Healthcare.

[^36]: *See, e.g.*, Comments of the Metropolitan Washington Airports
    Authority, Manchester Airport, Phoenix Sky Harbor International
    Airport, Des Moines Airport, Louisville Regional Airport Authority,
    and Norfolk Airport Authority.

[^37]: 47 C.F.R. § 1.4000(a)(ii)(B). *Reply Comments of Continental
    Airlines, Inc.*, ET Docket No. 05-247, filed October 13, 2005,
    Exhibit B ¶ 4.

[^38]: 47 C.F.R. § 1.4000(a)(1).

[^39]: 47 C.F.R. § 1.4000(a)(ii)(A).

[^40]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 8-10.

[^41]: 47 C.F.R. § 1.4000(a)(1).

[^42]: *Reply Comments of Continental Airlines, Inc*., ET Docket No.
    05-247, filed October 13, 2005, 7-8.

[^43]: *Ex parte Notice of the Massachusetts Port Authority*, ET Docket
    No. 05-247, filed June 1, 2006, 2.

[^44]: *In re* Lourie, *Memorandum Opinion and Order*, CSR 5185-0,
    13 FCC Rcd 16760, 16763-64 ¶¶ 10-11 (1998) (finding that townhome
    owner's satellite dish installed on a chimney was covered by the
    OTARD rule despite fact that homeowners association had
    responsibility for repair, replacement and maintenance of chimney
    surface). *In re* Frankfort, *Memorandum Opinion and Order*, CSR
    5024-0, 12 FCC Rcd 17631, 17636 ¶ 16 (1997) (finding that townhome
    owner's antenna installed on a balcony was covered by the OTARD rule
    despite fact the townhouse association had an easement to enter the
    balcony for maintenance). *See also* Woodbridge Condo. Owners Ass'n
    v. Jennings, No. 2003-L-122, slip op. at 4-5 (Ohio Ct. App. 11 Dist.
    2003) (finding that the OTARD rules apply to antenna on patio of
    condominium despite fact that association had right to enter patio
    to enforce association rules). *See* Implementation of Section 207
    of the Telecommunications Act of 1996, *Order on Reconsideration*,
    CS Docket No. 96-83, 13 FCC Rcd 18962, 18995-96 ¶¶ 79-81 (1998)
    (discussing reconsideration of the 1996 *Report and Order*).

[^45]: *In re* Wojcikewicz, *Memorandum Opinion and Order*, CSR-6030-0,
    18 FCC Rcd 19523, 19525-26 ¶¶ 5-8 (2003).

[^46]: *Ex parte Notice of the Massachusetts Port Authority*, ET Docket
    No. 05-247, filed December 16, 2005, 34-35.

[^47]: 47 C.F.R. § 1.4000(a)(2).

[^48]: *Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005, 30-32; *see also
    Comments of the Massachusetts Port Authority*, ET Docket No. 05-247,
    filed September 28, 2005, 59-61.

[^49]: Moreover, the Internet is used to conduct a variety of commercial
    activities, including on-line shopping, auctions, banking, and
    travel planning. *See generally* the Pew Internet & American Life
    Project, www.pewinternet.com.

[^50]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 61-63; *Ex parte Comments of the
    Massachusetts Port Authority*, ET Docket No. 05-247, filed December
    16, 2005, 32-34. To the extent that Massport suggests that section
    207 of the 1996 Act implicitly limits the applicability of the OTARD
    rules to fixed antennas in this manner, we observe that even if
    section 207 contains such limits in the video programming context,
    the Commission drew on a broader statutory authority when it
    extended the OTARD rules to fixed wireless signals. *See* Section
    (C)(1), *infra*. Thus, the scope of section 207 is not dispositive
    in determining what transmissions qualify as "fixed wireless
    signals." *Competitive Networks Report and Order*, 15 FCC Rcd at
    23028-35 ¶¶ 101-116.

[^51]: *Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005, 33.

[^52]: *Competitive Networks Report and Order*, 15 FCC Rcd at 23028-29
    ¶¶ 101-102 (*citing* Telecommunications Act of 1996, Pub. L. No.
    104-04, purpose statement, 110 Stat. 56, 56 (1996); 47 U.S.C. §
    151).

[^53]: *Competitive Networks Report and Order*, 15 FCC Rcd at 23030 ¶
    103 (*citing* 47 U.S.C. § 157 note).

[^54]: *Competitive Networks Report and Order*, 15 FCC Rcd at 23030 ¶
    104 (*citing* 47 U.S.C. §§ 201(b), 202(a), and 205(a)).

[^55]: This potential competitive concern is one of the bases of
    Massport's complaints -- that application of the OTARD rules in this
    case would "increase Massport's operating costs and decrease its
    revenues." *Ex parte Comments of the Massachusetts Port Authority*,
    ET Docket No. 0

[^56]: 5-247, filed December 16, 2005, 22.

    ^?^ *Comments of Continental Airlines, Inc*. ET Docket 05-247, filed
    September 28, 2005, 14. *Reply Comments of Continental Airlines,
    Inc*., ET Docket No. 05-247, filed October 13, 2005, 19-20.

[^57]: *See Competitive Networks Report and Order*, 15 FCC Rcd at 23034
    ¶ 114. *Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005, 28-30.

[^58]: *Competitive Networks Report and Order*, 15 FCC Rcd at 23028 ¶ 99
    (2000).

[^59]: *Id.* at 23032 ¶ 109. In contrast, the Commission explained that
    customer-end antennas used for transmitting or receiving
    telecommunications signals do not constitute "personal wireless
    service facilities" and therefore are not covered by Section
    332(c)(7). *Id.* at 23032-34 ¶¶ 108-115. Accordingly, the Commission
    concluded that Section 332(c)(7) neither "prevent\[s\] the
    Commission from restricting state and local government regulation of
    these antennas," nor "preserve\[s\] state and local authority over
    \[them\]." *Id.* at 23032, 23034 ¶¶ 109 and 115.

[^60]: Promotion of Competitive Networks in Local Telecommunications
    Markets, *Order on Reconsideration*, WT Docket No. 99-217, 19 FCC
    Rcd 5637, 5644 ¶ 16 (2004) (*Competitive Networks Reconsideration
    Order*).

[^61]: *Competitive Networks Reconsideration Order*, 19 FCC Rcd at 5644
    ¶ 17 (emphasis in original).

[^62]: *Id*. (parenthetical added).

[^63]: *Competitive Networks Reconsideration Order*, 19 FCC Rcd at 5643
    ¶ 16.

[^64]: *Id*.

[^65]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 58-59.

[^66]: To the extent Continental's antenna incidentally transmits
    signals outside of the leased premises, it is not transmitting them
    to "customer locations," because Continental does not have any
    "customers" outside of its President's Club lounge.

[^67]: Given that Continental is not transmitting or receiving
    commercial signals from multiple customer locations, we need not
    determine whether the fact that some of Continental's invitees pay
    membership dues to Continental for entrance to the lounge renders
    the antenna a hub. We note, however, that Continental does not offer
    wireless service for a fee directly to the public or for an
    additional charge to its President's Club members. Instead, access
    to the Wi-Fi signals transmitted by Continental's antenna is
    incidental to club access. Moreover, as noted *supra* paragraph 9,
    there are several ways in which access to Continental's lounges can
    be gained without any dues payment. Finally, the use of
    Continental's antenna by its passengers does not change any
    conceivably relevant attribute that the antenna would have -- or
    introduce any greater burden on Massport than the antenna would
    otherwise place -- were it used exclusively for Continental
    personnel.

[^68]: As we observed in the *Competitive Networks Report and Order*,
    when Congress promulgated section 332(c)(7), its focus was on
    preserving local zoning authority with respect to such matters as
    the location of 50-foot towers, not the use of customer-end
    antennas. *Competitive Networks Report and Order*, 15 FCC Rcd at
    23033 ¶ 112. Unlike the targeted subjects of local zoning
    authorities, Continental's antenna is of a type commonly used by
    consumers, is located indoors, and is being used to provide service
    to the antenna user solely within the leased premises. In these
    circumstances, it cannot be said that Continental's use of its Wi-Fi
    antenna on leased premises is an attempt to "avoid compliance with a
    legitimate zoning regulation." *Competitive Networks Reconsideration
    Order*, 19 FCC Rcd at 5644 ¶ 17.

[^69]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 8, Appendix A §§ 7.1, 7.2, 10.3.

[^70]: *See* 47 C.F.R. § 1.4000(a)(1) (stating that restrictions that
    impair "installation" or "use" of an antenna covered by the OTARD
    rules are prohibited).

[^71]: *Id*. at 8-9; Appendix A § 9.4.

[^72]: *In re* Pinter, *Memorandum Opinion and Order*, CSR 6245-0, 19
    FCC Rcd 17385, 17390-91 ¶ 13 (2004) (finding that association policy
    requiring prior approval to place an antenna does not comport with
    rule); *In re* Wojcikewicz, *Memorandum Opinion and Order*,
    CSR-6030-0, 18 FCC Rcd 19523, 19527-28 ¶ 12 (2003) (finding that
    prior approval requirement before installing antenna constitutes
    impermissible delay); *In re* Frankfort, *Memorandum Opinion and
    Order*, CSR 5238-0, 18 FCC Rcd 18431, 18432-34 ¶¶ 6-8 (2003)
    (finding that blanket pre-approval processes impose an unreasonable
    delay on antenna users unless for reasons of safety or historic
    preservation); *In re* Bell Atlantic Video Services Co., *Memorandum
    Opinion and Order*, CSR 5398-0, 15 FCC Rcd 7366, 7370 ¶ 10 (2000)
    (finding that prior approval requirement before installing antenna
    is impermissible unless for safety or historic preservation); *In
    re* Holliday, *Memorandum Opinion and Order*, CSR 5399-0, 14 FCC Rcd
    17167, 17170 ¶ 10 (1999) (finding that requirement to get approval
    from Association committee before installing antenna is prohibited);
    *See also* *In re* Sadler, *Memorandum Opinion and Order*, CSR
    5074-0, 13 FCC Rcd 12559, 12569-70 ¶¶ 32-34 (1998); *In re* Wireless
    Broadcasting Sys. of Sacramento, *Memorandum Opinion and Order*, CSR
    97-2506, 12 FCC Rcd 19746, 19751 ¶¶ 10-11 (1997).

[^73]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 27-39; *Reply Comments of the
    Massachusetts Port Authority*, ET Docket No. 05-247, filed October
    13, 2005, 15-25.

[^74]: "\[T\]he same standard of impairment can be applied to a
    restriction based on the existence of a central antenna as is
    applied to any other antenna restriction. That . . . it does not
    impair installation, maintenance, and use." Implementation of
    Section 207 of the Telecommunications Act of 1996, *Order on
    Reconsideration*, CS Docket No. 96-83, 13 FCC Rcd 18962, 18998-99 ¶¶
    86 (1998).

[^75]: Prior approval, permitting, or fee requirements are prohibited by
    OTARD unless for safety and historic preservation reasons.
    Preemption of Local Zoning Regulation of Satellite Earth Stations;
    Implementation of Section 207 of the Telecommunications Act of 1996;
    and Restrictions on Over-the-Air Reception Devices: Television
    Broadcast Service and Multichannel Multipoint Distribution Service,
    *Report and Order, Memorandum Opinion and Order, and Further Notice
    of Proposed Rulemaking*, CS Docket No. 96-83, 11 FCC Rcd 19276,
    19286-87, ¶ 17 (1996).

[^76]: *Ex Parte Presentation of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed March 20, 2006.

[^77]: For example, there is some dispute in the record as to whether
    the airport Wi-Fi backbone provides as strong a signal in the
    President's Club lounge as Continental's Wi-Fi system. *Reply
    Comments of the Air Transport Associations of America, Inc.*, ET
    Docket No. 05-247, filed October 13, 2005, 20 (noting that Massport
    has admitted that an engineering audit showed the airport Wi-Fi
    backbone provided a slightly weaker signal than Continental's Wi-Fi
    in one corner of the lounge); *Ex parte Presentation of the
    Massachusetts Port Authority*, ET Docket No. 05-247, filed March 31,
    2006 (claiming that the airport Wi-Fi backbone has provided an equal
    or stronger signal than Continental's Wi-Fi for six months).

[^78]: *Ex parte Submission of Continental Airlines*, ET Docket No.
    05-247, filed March 24, 2006.

[^79]: The Commission noted when adopting the original OTARD rules that
    letting local governments require pre-approval before installing
    antennas would harm the ability of service providers who utilize
    antennas to compete by creating extra hurdles for consumers.
    Preemption of Local Zoning Regulation of Satellite Earth Stations;
    Implementation of Section 207 of the Telecommunications Act of 1996;
    and Restrictions on Over-the-Air Reception Devices: Television
    Broadcast Service and Multichannel Multipoint Distribution Service,
    *Report and Order, Memorandum Opinion and Order, and Further Notice
    of Proposed Rulemaking*, CS Docket No. 96-83, 11 FCC Rcd 19276,
    19286-87, ¶ 17 (1996). Hence when formulating the OTARD rules the
    Commission has been concerned with the impact on competitive
    communications providers, such as Continental's Internet service
    provider (ISP). Not allowing Continental to use its own Wi-Fi
    antenna would harm the competitive position of ISP's desiring to
    provide service to Continental via wire since Continental would be
    unable to relay service wirelessly within its premises. Continental
    would in effect be limited to a choice of one provider to obtain
    wireless Internet service, AWG, instead of having the option of
    choosing from a multitude of ISPs.

[^80]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 42-55; 47 C.F.R. § 1.4000(b)(1).

[^81]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 48-51. There is no indication from
    the record that any public safety agency currently uses the airport
    Wi-Fi backbone. Furthermore, no public safety agency has filed
    comments in this proceeding.

[^82]: According to Continental, three other airlines operate unlicensed
    wireless systems at Logan airport. These systems are used for
    curbside check-in of baggage and on the airport ramps for baggage
    and mail handling as well as ramp operations. *Ex parte Notice of
    Continental Airlines*, ET Docket No. 05-247, filed February 7, 2006.

[^83]: 47 C.F.R. § 15.5(b).

[^84]: 47 C.F.R. § 1.4000(b)(1).

[^85]: Preemption of Local Zoning Regulation of Satellite Earth
    Stations, *Report and Order, Memorandum Opinion and Order and
    Further Notice of Proposed Rulemaking*, IB Docket No. 95-59, 11 FCC
    Rcd 19276, 19290-91 ¶ 24 (1996). The relevant RF emissions standards
    are for the protection of health and not for prevention of
    interference with other radio devices. *Id*. at 19291 ¶ 24 n.60.

[^86]: *In re* Frankfort, *Memorandum Opinion and Order*, CSR 5238-0, 16
    FCC Rcd 2875, 2887, 2889 ¶¶ 38, 42 (2001) (finding that requirements
    that antennas withstand 50 mph winds and be properly grounded were
    valid safety restrictions); *In re* Frankfort, *Memorandum Opinion
    and Order*, CSR 5238-0, 18 FCC Rcd 18431, 18432-34 ¶¶ 6-8 (2003)
    (finding that association must specify provisions of National
    Electric Code (NEC) it wants enforced and describe and specify how
    provision furthers articulated safety objective rather than just
    require compliance with NEC). *In re* MacDonald, *Memorandum Opinion
    and Order,* CSR 4922-0, 13 FCC Rcd 4844, 4851 ¶ 24 (1997) (finding
    that passing reference in association regulation to safety does not
    qualify for OTARD safety exception).

[^87]: Communications Act of 1934, 47 U.S.C. § 151 *et. seq*. (2004). In
    particular, *see, e.g*., 47 U.S.C. §§ 301, 302(a)(1), 303(f) (2004).
    Both the Commission and federal courts have overturned attempts by
    third parties to regulate RF interference in light of the FCC's
    exclusive authority in this area. *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); In re 960
    Radio, Inc*., Memorandum Opinion and Declaratory Ruling*, FCC
    85-578, 1985 WL 193883 (Nov. 4, 1985); 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); In re
    Mobilecomm of New York Inc*.*, *Memorandum Opinion and Declaratory
    Ruling*, 2 FCC Rcd 5519 (CCB 1987).

[^88]: Continental's Wi-Fi is a Cisco Model 1200 Wireless Access Point
    with a 802.11b radio. It operates at a power of 20 mW in the 2.462
    GHz band. *Reply Comments of Continental Airlines, Inc*, ET Docket
    No. 05-247, filed at October 13, 2005, Exhibit B ¶¶ 2, 4. Such a
    radio operates pursuant to section 15.247 of our Rules. 47 C.F.R. §
    15.247.

[^89]: "This part sets out the regulations under which an intentional,
    unintentional, or incidental radiator may be operated without an
    individual license." 47 C.F.R. § 15.1.

[^90]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 64.

[^91]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 65.

[^92]: Implementation of Section 207 of the Telecommunications Act of
    1996, *Second Report and Order*, CS Docket No. 96-83, 13 FCC Rcd
    23874, 23889 ¶ 29 n.73 (1998).

[^93]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 67-72; *Ex parte Comments of the
    Massachusetts Port Authority*, ET Docket No. 05-247, filed December
    16, 2005, 2-10.

[^94]: *Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005, 2-10.

[^95]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 67.

[^96]: 47 U.S.C. § 303 nt. (1994).

[^97]: *Competitive Networks Report and Order*, 15 FCC Rcd at 23031 ¶
    106 (2000).

[^98]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 68; *Ex parte Comments of the
    Massachusetts Port Authority*, ET Docket No. 05-247, filed December
    16, 2005, 4. We note that Massport apparently assumes -- erroneously
    -- that the Commission had based its substantive authority to
    promulgate OTARD regulations exclusively on Section 303(r). As
    demonstrated in the *Competitive Networks Report and Order* and in
    the decision today, the Commission is also drawing upon a number of
    other sources of its authority (predating the enactment of Section
    207) to establish OTARD rules in the fixed wireless context (*i.e.,*
    Section 303(d) and, in conjunction with the principles of ancillary
    jurisdiction, Sections 1, 201(b), 202(a), and 205(a) of the
    Communications Act, and the Preamble to and Section 706 of the 1996
    Telecommunications Act).

[^99]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 68; *Ex parte Comments of the
    Massachusetts Port Authority*, ET Docket No. 05-247, filed December
    16, 2005, 4.

[^100]: *Comments of the Massachusetts Port Authority*, ET Docket No.
    05-247, filed September 28, 2005, 67-68.

[^101]: *See Competitive Networks Report and Order*, 15 FCC Rcd at 23031
    ¶ 106 (2000) (stating that Section 207 removed the Commission's
    "discretion on both the timing *and* the determination of the need
    for such regulation") (emphasis added).

[^102]: *Id.*

[^103]: See text in note Error: Reference source not found, *infra*.

[^104]: *See Competitive Networks Report and Order*, 15 FCC Rcd at 23031
    ¶ 106 n.272 (2000).

[^105]: *Competitive Networks Report and Order*, 15 FCC Rcd at 23030-31
    ¶ 105 (2000).

[^106]: 47 U.S.C. § 303(d) (2004).

[^107]: 47 U.S.C. § 153(35) (2004).

[^108]: 47 U.S.C. § 153(33) (2004).

[^109]: *See Amendment of Parts 1, 17, and 73 to Provide for the
    Establishment and Use of Antenna Farm Are*as, 8 F.C.C.2d 559, 563 ¶
    9 (1967) (citing Section 303 for the proposition that "\[t\]he
    Federal Communications Commission has consistently maintained that
    it has the ultimate responsibility to determine whether the public
    interest would be served by construction of any specific antenna
    tower.").

[^110]: *Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005, 4-5.

[^111]: *Competitive Networks Report and Order*, 19 FCC Rcd at 23028-35
    ¶¶ 101-116.

[^112]: Federal Courts have consistently recognized that these
    provisions give the Commission broad authority to take actions that
    are not specifically encompassed within any statutory provisions but
    that are reasonably necessary to advance the purposes of the Act.
    *See, e.g.,* *AT&T Corp.* *v.* *Iowa Utils. Bd.*, 525 U.S. 366
    (1999) (J. Scalia, writing for the majority, upholding Commission's
    exercise of ancillary jurisdiction pursuant to Section 201(b));
    *United States* *v.* *Southwestern Cable,* 392 U.S. 157 (1968)
    (S*outhwestern Cable*) (upholding the Commission's authority to
    regulate cable television); *National Broadcasting Comm'n* *v.*
    *United States*, 319 U.S. 190, 219 (1943) (Congress "did not
    frustrate the purposes for which the Communications Act of 1934 was
    brought into being by attempting an itemized catalogue of the
    specific manifestations of the general problems for the solution of
    which it was establishing a regulatory agency"); *Texas Rural Legal
    Aid, Inc.* *v.* *Legal Serv. Corp.*, 940 F.2d 685, 694 (D.C. Cir.
    1991) (a "congressional prohibition of a particular conduct may
    actually support the view that the administrative entity can
    exercise its authority to eliminate a similar danger"); *United
    Video, Inc*. *v.* *FCC*, 890 F.2d 1173, 1183 (D.C. Cir. 1989)
    (upholding Commission's authority to reinstate syndicated
    exclusivity rules for cable television companies as ancillary to the
    Commission's authority to regulate television broadcasting); *Rural
    Tel. Coalition v. FCC*, 838 F.2d 1307 (D.C. Cir. 1988) (upholding
    Commission's pre-statutory version of the universal service fund as
    ancillary to its responsibilities under Sections 1 and 4(i) of the
    Communications Act, stating that "\[a\]s the Universal Service Fund
    was proposed in order to further the objective of making
    communications service available to all Americans at reasonable
    charges, the proposal was within the Commission's statutory
    authority"); *North American Telecomm. Ass'n* *v.* *FCC*, 772 F.2d
    1281, 1292-93 (7^th^ Cir. 1985) ("Section 4(i) empowers the
    Commission to deal with the unforeseen -- even if \[\] that means
    straying a little way beyond the apparent boundaries of the Act --
    to the extent necessary to regulate effectively those matters
    already within the boundaries") (citations omitted); *Lincoln Tel. &
    Tel. Co.* *v.* *FCC*, 659 F.2d 1092, 1109 (D.C. Cir. 1981) ("The
    instant case was an appropriate one for the Commission to exercise
    the residual authority contained in Section 154(i) to require a
    tariff filing. . . . The Commission properly perceived the need for
    close supervision and took the necessary course of action: it
    required LT&T to file an interstate tariff setting forth the charges
    and regulations for interconnection."); *GTE Serv. Corp. v. FCC*,
    474 F.2d 724, 731 (2d Cir. 1974) (holding that "even absent explicit
    reference in the statute, the expansive power of the Commission in
    the electronic communications field includes the jurisdictional
    authority to regulate carrier activities in an area as intimately
    related to the communications industry as that of computer services,
    where such activities may substantially affect the efficient
    provision of reasonably priced communications service").

[^113]: Promotion of Competitive Networks in Local Telecommunications
    Markets, *Order on Reconsideration*, WT Docket No. 99-217, 19 FCC
    Rcd 5637, 5640-41 ¶ 8 (2004). The Commission's interpretation of
    Section 207 in the *Competitive Networks Report and Order* and the
    scope of its ancillary jurisdiction are supported by the
    Commission's history of relying on ancillary jurisdiction to preempt
    state and local regulation of antennas before adoption of Section
    207, of which Congress was presumably aware at the time of adoption.
    We note that the Commission first exercised its preemption authority
    in this area long before Section 207 was passed. In addition, even
    shortly after Section 207 was adopted, the Commission included
    additional services within the scope of its OTARD rules and,
    moreover, allowed preemption for antennas that both received and
    transmitted, for certain limited purposes. In 1986, the Commission
    first preempted state and local regulation of antennas used to
    receive commercial satellite services. Preemption of Local Zoning or
    Other Regulation of Receive-Only Satellite Earth Stations, *Report
    and Order*, 59 Rad. Reg. 2d (P&F) 1073 (1986). Again in 1996, the
    Commission revisited these satellite earth station rules to provide
    increased protection to smaller satellite antennas used by
    consumers. Preemption of Local Zoning Regulation of Satellite Earth
    Stations, *Report and Order and Notice of Proposed Rulemaking*, IB
    Docket No. 95-59, 11 FCC Rcd 5809 (Adopted February 29, 1996). Also,
    in 1996, the Commission promulgated the original OTARD rules and
    these rules included a number of services, such as MDS, LMDS, and
    ITFS, which were not enumerated explicitly in Section 207. *Id.* The
    Commission included these services because it believed that Congress
    did not intend to exclude services that were functionally equivalent
    to the services explicitly listed in Section 207. As a result, long
    before the *Competitive Networks* proceeding, the Commission
    concluded that it had the necessary statutory authority to adopt
    OTARD rules for services not explicitly enumerated in Section 207
    and for antennas used to transmit, for their use in connection with
    video programming. Many of these decisions relied on, *inter alia*,
    the Commission's statutory authority pursuant to Sections 1 and 303
    of the Communications Act.

[^114]: *Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005, 5-7 (citing *American
    Library Ass'n v. FCC*, 406 F.3d 689 (D.C. Cir. 2005)).

[^115]: 47 U.S.C. § 151 (2004).

[^116]: Massport's theory would apparently allow the Commission to
    authorize Continental's receipt and transmission of radio signals,
    but not permit the Commission to require Massport to allow
    Continental to install the necessary antenna.

[^117]: *American Library Ass'n*, 406 F.3d at 691.

[^118]: *American Library Ass'n*, 406 F.3d at 700.

[^119]: *American Library Ass'n*, 406 F.3d at 700 (emphasis in
    original).

[^120]: *Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005, 7.

[^121]: *Competitive Networks Report and Order*, 19 FCC Rcd at 23027 ¶¶
    97.

[^122]: *See Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005, 18-19.

[^123]: 47 C.F.R. § 1.4000(a)(1).

[^124]: *Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005 at 11-14.

[^125]: *Boston Harbor*, 507 U.S. at 213-32 (emphasis added).

[^126]: *Ex parte Comments of the Massachusetts Port Authority*, ET
    Docket No. 05-247, filed December 16, 2005, at 12.

[^127]: *Sprint Spectrum*, 283 F.3d at 421.

[^128]: *Competitive Networks Order on Reconsideration*, 19 FCC Rcd at
    5639-40 ¶¶ 5-7. *See also* Implementation of Section 207 of the
    Telecommunications Act of 1996, *Second Report and Order*, CS Docket
    No. 96-83, 13 FCC Rcd 23874, 23878-81 ¶¶ 10-15 (1998).

[^129]: *BOMA*, 254 F.3d at 96.

[^130]: *Id.* at 92.

[^131]: *Competitive Networks Order on Reconsideration*, 19 FCC Rcd at
    5640 ¶ 7.

[^132]: *Id.*

[^133]: *Reply Comments of the Massachusetts Port Authority*, ET Docket
    No. 05-247, filed October 13, 2005, 13-15; *Ex parte Comments of the
    Massachusetts Port Authority*, ET Docket No. 05-247, filed December
    16, 2005, 20-23.

[^134]: Implementation of Section 207 of the Telecommunications Act of
    1996, *Second Report and Order*, CS Docket No. 96-83, 13 FCC Rcd
    23874, 23882-89 ¶¶ 17-29 (1998).

[^135]: *Bldg. Owners and Managers Ass'n Int'l v. FCC*, 254 F.3d 89,
    97-100 (D.C. Cir. 2001) (rejecting a *per se* taking claim while
    leaving open the possibility that the OTARD rule could result in a
    regulatory taking).

[^136]: *Reply Comments of Continental Airlines, Inc*., ET Docket No.
    05-247, filed October 13, 2005, Exhibit B ¶ 4.

[^137]: According to Massport, the application of the 1996 Act's goals
    of encouraging telecommunication competition and the commercial
    deployment of new technologies is not furthered because Internet
    service is an information service as opposed to a telecommunications
    service, and because Continental's service is offered for free
    instead of on a commercial basis. *Ex parte Comments of the
    Massachusetts Port Authority*, ET Docket No. 05-247, filed December
    16, 2005, 22. As discussed above, Massport is mistaken because
    Continental's Wi-Fi antenna does transmit commercial signals and
    competition in and deployment of advanced telecommunications
    technology is furthered by Continental's Wi-Fi antenna.

[^138]: *Penn. Central Transp. Co. v. New York City*, 438 U.S. 104,
    124-25 (1978).