11/1. The Federal Communications Commission (FCC) issued a Memorandum Opinion and Order [25 pages in PDF] concluding 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."

This proceeding is titled "In the matter of Continental Airlines Petition for Declaratory Ruling Regarding the Over-the-Air Reception Devices (OTARD) Rules" and numbered ET Docket No. 05-247. This order is numbered FCC 06-157.

Background. On July 8, 2005, Continental Airlines filed a Petition for a Declaratory Ruling [16 pages in PDF] and supplement [PDF] regarding the Massachusetts Port Authority's (MassPort or MPA) attempt to regulate and extract revenues from airport WiFi hotspots.

Continental installed a WiFi hotspot in its frequent flyer lounge at the Boston Logan International Airport, in Boston, Massachusetts. It provides WiFi access to its customers at no additional charge.

The MPA demanded removal of the antenna. The MPA asserted in a letter to Continental (which is attached to the petition) that there is a "potential threat to public safety caused by Continental’s unauthorized and unlawful wireless communications". The MPA asserts that Continental's service creates an interference problem.

However, the correspondence attached to the petition suggests that the MPA's real concern is not with radio frequency interference. Rather, Continental's free service is interfering with the MPA's extraction of monopoly rents from WiFi users, most of whom are not Boston residents.

See also, story titled "FCC Delays Proceeding on State Regulation of Airport WiFi Hotspots" in TLJ Daily E-Mail Alert No. 1,201, August 25, 2005, and story titled "FCC Seeks Comments of Massachusetts Port Authority's Attempt to Regulate Airport WiFi Hotspots" in TLJ Daily E-Mail Alert No. 1,186, August 2, 2005.

Summary of Opinion. The FCC preempted the MPA restrictions.

Had the FCC not ruled that the MPA's restrictions are preempted by its OTARD rules, other airports, and perhaps other municipal, state and local government entities, may have followed the MPA's example, and instituted regulation and of the provision of WiFi service.

FCC Commissioner Michael Copps wrote in a statement [PDF] that "American consumers and businesses are free to install Wi-Fi antennas under our OTARD rules -- meaning without seeking approval from their landlords".

He added that "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."

He also wrote that "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."

FCC Commissioner Jonathan Adelstein wrote in a statement [PDF] that "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."

The FCC's OTARD rules make no distinction between radio devices using licensed technologies and those using unlicensed technologies under Part 15 of the FCC's rules. However, the just released MOO is the first time that the FCC has ruled in a proceeding regarding application of the OTARD to unlicensed devices that operate under Part 15.

Adelstein (at right) commented that "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 ``unlicensed´´ ones for purposes of our OTARD rules."

FCC Analysis. The FCC's OTARD rule is codified at 47 C.F.R. § 1.4000. See also, the FCC's OTARD web page.

Subsection (a)(1) provides, in parts relevant to the FCC's analysis, that "Any restriction ... on property within the exclusive use or control of the antenna user ... that impairs the installation, maintenance, or use of ... An antenna that is ... Used ... to receive or transmit fixed wireless signals ... is prohibited to the extent it so impairs ..."

Subsection (a)(1) provides in full that,

"(a)(1) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulations, or any private covenant, contract provision, lease provision, homeowners' association rule or similar restriction, on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of:
  (i) An antenna that is:
    (A) Used to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite, and
    (B) One meter or less in diameter or is located in Alaska;
  (ii) An antenna that is:
    (A) Used to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, or to receive or transmit fixed wireless signals other than via satellite, and
    (B) That is one meter or less in diameter or diagonal measurement;
  (iii) An antenna that is used to receive television broadcast signals; or
  (iv) A mast supporting an antenna described in paragraphs (a)(1)(i), (a)(1)(ii), or (a)(1)(iii) of this section;
is prohibited to the extent it so impairs, subject to paragraph (b) of this section." (Emphasis added.)

Section 1.4000 goes on to define "fixed wireless signals", impairment, and other terms. Subsection (a)(2) provides that "fixed wireless service" includes "any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location".

This section provides that certain state or local government restrictions are prohibited. The FCC analyzed each element that is prerequisite to a finding of preemption in light of the nature of Continental's WiFi service, and the MPA restriction, and concluded the Continental is entitled to a determination that the MPA's restriction is preempted by the rule.

The FCC wrote that Continental's antenna is of a size covered by the rule.

It also found that the antenna is located on property within the exclusive use and control of Continental. The FCC held that Continental's leasehold interest, and control over who has access to its lounge, suffice to meet this requirement. The FCC also rejected the MPA's argument that lease provisions allowing it to access to the premises for maintenance, security, construction work, or to place utilities, defeats the exclusive use and control requirement.

The FCC rejected the argument advanced by the MPA that Continental is not the "antenna user" under this rule.

The FCC also found that Continental's antenna is used to receive or transmit fixed wireless signals. The FCC rejected the MPA's argument that since Continental did not charge is customers extra for WiFi, this service was not commercial within the meaning of Subsection (a)(2). The FCC reasoned that this subsection requires only that the "signal", but not the service, be "commercial".

Section 1,4000 does not expressly reference "WiFi" by name, or reference it by its specific technical characteristics. The MPA noted several technical characteristics of WiFi service, and argued that the rule does not cover these. The FCC rejected all such arguments.

The FCC next found that the MPA's restrictions meet the impairment requirement of the rule.

The FCC next concluded that the MPA does not meet the public safety exception. The MPA argued that public safety personnel might use WiFi in the future, and that Continental's WiFi could interfere with that.

Subsection (b)(1) provides in part that "(b) Any restriction otherwise prohibited by paragraph (a) of this section is permitted if: (1) It is necessary to accomplish a clearly defined, legitimate safety objective ..."

The FCC wrote that "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. Part 15 specifies power levels, frequency bands, and conditions under which devices may transmit RF signals without requiring a license. 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." (Footnotes omitted.)

Finally, the FCC rejected arguments of the MPA that the FCC should recognize exemptions not included in the rule, such as a government buildings exemption.

Reaction. Gary Shapiro, head of the Consumer Electronics Association (CEA), praised the FCC decision in a release. He said that "making Wi-Fi available serves the traveling public, allowing anytime, anywhere connectivity. The availability of Wi-Fi devices and service is needed to encourage broadband deployment, which will provide enormous benefits to consumers and our economy."

The FCC took almost 16 months to issue its opinion in this factually and legally uncomplicated proceeding. However, the issue was more complicated politically. The Boston airport, and airport authorities generally, opposed OTARD preemption. The MPA is located in the state of Massachusetts. Sen. John Kerry (D-MA) represents Massachusetts, and is a senior member of the Senate Commerce Committee, which oversees the FCC. The FCC's release of this MOO coincides with Sen. Kerry's speech in which he commented on the intelligence of U.S. armed forces personnel.

10/30. The National Music Publishers Association (NMPA) announced in a release that "the music publishers have reached an anticipated settlement of the publishers' class action litigation against the operators of the Kazaa peer-to-peer network."

The NMPA release adds that "Under the terms of the settlement, Kazaa has agreed to pay a substantial sum to compensate music publishers and songwriters for the infringement of musical works on the Kazaa network."

This settlement follows the Supreme Court's June 27, 2005, opinion [55 pages in PDF] in MGM v. Grokster, and the U.S. District Court's (CDCal) September 27, 2006, opinion [60 pages in PDF] on remand.

Metro Goldwyn Meyer (MGM), other movie companies, and record companies, filed one complaint in the U.S. District Court (CDCal) against Grokster, Streamcast and Kazaa alleging copyright infringement, in violation of 17 U.S.C. § 501. They alleged contributory and vicarious infringement. In addition, professional songwriters and music publishers filed a separate class action complaint against the same defendants also alleging contributory and vicarious infringement. The two actions were consolidated.

See also, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

The Kazaa defendants previously settled with the record and movie company plaintiffs. See, story titled "Kazaa Settles With Music Companies" in TLJ Daily E-Mail Alert No. 1,420, July 28, 2006.

11/1. The Copyright Office (CO) published a notice in the Federal Register that announces, describes, and attaches a copy of, its Memorandum Opinion [34 pages in PDF] to the Copyright Royalty Board stating, with certain caveats, that the statutory license for making and distributing phonorecords under the Copyright Act applies to ringtones.

See also, 17 U.S.C. § 115 and story titled "Copyright Office Opines that Cellphone Ringtones are Digital Phonorecord Deliveries Under Section 115" in TLJ Daily E-Mail Alert No. 1,477, October 27, 2006.

The Recording Industry Association of America's (RIAA) requested the ruling. Its General Counsel, Steven Marks, stated in a release that "In an ever-transforming digital marketplace, ringtones also represent an important new way for the industry to recognize a return on its investment in music. This decision injects clarity into the marketplace -- clarity that will help satisfy fans' hunger for the latest hits from today's best artists by affording record companies and ringtone providers the ability to move new offerings quickly and easily to consumers. Ultimately, we're all seeking a vibrant mobile business. This decision helps us further that goal."

The CO notice states that the Memorandum Opinion's effective date is October 16, 2006. See, Federal Register, November 1, 2006, Vol. 71, No. 211, at Pages 64303-64317.

11/1. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, and sets the effective date of (January 2, 2007), its final rule amending its regulations that impose obligations on broadcasters with respect to children's broadcasting. See, Federal Register, November 1, 2006, Vol. 71, No. 211, at Pages 64154-64165. The FCC adopted its Second Order on Reconsideration and Second Report and Order on September 26, 2006, and released its on September 29, 2006. It is FCC 06-143 in MM Docket No. 00-167.

11/1. Vice President Dick Cheney gave a political campaign speech in Kallispell, Montana, for Sen. Conrad Burns (R-MT), and Rep. Denny Rehberg (R-MT), and others. He discussed, among other things, HR 5825, the "Electronic Surveillance Modernization Act". The House approved this bill on September 28, 2006, by a vote of 232-191. Republicans voted 214-13. Democrats voted 18-177. See, Roll Call No. 502. The Senate has not voted on this bill. Cheney said that "To win this war, America also needs the Terrorist Surveillance Program -- this is a program the President set up right after 9/11, which allows the National Security Agency to monitor international communications, one end of which we have reason to believe is related to al Qaeda, or terrorist networks. The purpose is obvious: If people inside the United States are communicating with al Qaeda, they are talking to the enemy, and we need to know about it. Yet many leading Democrats have denounced the President for this program. Recently, when a bill to authorize the program came to a vote on the House floor, 177 Democrats -- 88 percent of the House Democratic members voted no." VP Cheney argued that "the key question before the voters on November 7th is whether or not this nation is serious about fighting the war on terror. And there can be no doubt that George W. Bush, Conrad Burns, and Denny Rehberg are serious about fighting and winning it."

11/1. The Copyright Office (CO) published a notice in the Federal Register announcing its "receipt of a notice of intent to audit 2005 statements of account concerning the eligible nonsubscription and subscription transmissions of sound recordings made by Live365, Inc. (``Live365´´) under statutory licenses." See, Federal Register, November 1, 2006, Vol. 71, No. 211, at Pages 64317-64318.

The House will not meet. It may return from it elections recess on Monday, November 13, 2006. The adjournment resolution, HConRes 483, provides for returning on Thursday, November 9, at 2:00 PM.

The Senate will not meet. See, HConRes 483.

8:00 - 10:00 AM. The Software & Information Industry Association (SIIA) will host an event titled "Federal Enterprise Architecture: Key Strategies Government Agencies Need to Implement for Aligning IT Operations to Accelerate Business Performance". See, notice. Location: Morrison & Foerster, Suite 5500, 2000 Pennsylvania Ave., NW.

8:30 AM - 4:00 PM. The Department of Justice's (DOJ) Global Justice Information Sharing Initiative Federal Advisory Committee will meet. The deadline to register is October 26, 2006. See, notice in the Federal Register, October 26, 2006, Vol. 71, No. 204, at Page 62122. Location: Embassy Suites Hotel, 900 10th Street NW.

9:00 AM - 5:30 PM. The Information Technology Association of America (ITAA) will host a conference titled "Information Security in the Federal Enterprise". Karen Evans (OMB) will be the keynote speaker. The price to attend ranges from free to $400. See, notice and agenda [PDF]. For more information, contact Patti Coen at pcoen at itaa dot org. Location: Computer Services Corporation (CSC), Executive Briefing Center, 3170 Fairview Park Drive, Falls Church, VA.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch titled "VoIP and Broadband Developments in Europe and Asia". The speakers will be Mark Del Bianco (Law Office of Mark Del Bianco), Christian Dippon (NERA Economic Consulting), Peter Waters (Gilbert+Tobin and Arculli Fong & Ng), Karl Weaver (Newport Technologies), and Jean-marc Escalettes (France Telecom Long Distance USA). RSVP by October 30 to Jennifer Ullman at jennifer dot ullman at verizon dot com or 202-515-2432. Location: Skadden Arps, 11th Floor, 1440 New York Ave., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Korea-U.S. Free Trade Agreement -- Negotiations Update". The speakers will include Wendy Cutler (chief U.S. negotiator for the Korea US FTA), Seok-young Choi (Minister of Economic Affairs, Embassy of the Republic of Korea), Demetrios Marantis (International Trade Counsel, Democratic Staff, Senate Finance Committee), Myron Brilliant (U.S.-Korea Business Council), and Mary Patricia Michel (McKenna Long & Aldridge). The price to attend ranges from $5 to $25. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 PM. The Department of Justice (DOJ) will host an awards ceremony for the Criminal Division. The speakers will include Attorney General Alberto Gonzales and Secretary of Homeland Security Michael Chertoff. The technology related activities of the Criminal Division include prosecution of intellectual property crimes, computer hacking crimes, and internet gambling crimes, and implementation of the CALEA. The DOJ notice states that "ALL media MUST PRESENT GOVERNMENT-ISSUED PHOTO ID (such as driver's license) as well as VALID MEDIA CREDENTIALS. Media interested in attending should enter through the Visitor Center at the Constitution Avenue entrance, between Ninth and Tenth Streets. Due to this ongoing event, cameras must pre-set by 1:30 P.M. EST. Press inquiries regarding logistics should be directed to the Office of Public Affairs at (202) 514-2007." Location: DOJ Main Building, Great Hall, 950 Pennsylvania Ave., NW.

LOCATION CHANGE. 9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice in the Federal Register, October 18, 2006, Vol. 71, No. 201, at Pages 61470-61471, and notice in the Federal Register, November 1, 2006, Vol. 71, No. 211, at Pages 64278-64279. Location: Verizon Communications, 1320 North Courthouse Road, Arlington, VA.

9:30 AM. The Federal Communications Commission (FCC) may hold a meeting. See, agenda [PDF]. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 - 11:30 AM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss the upcoming meeting of the ITU Radiocommunication Sector's Conference Preparatory Meeting (CPM) for the 2007 World Radiocommunication Conference, to be held on February 19 through March 2, 2007 in Geneva, Switzerland. See, notice in the Federal Register, October 10, 2006, Vol. 71, No. 195, at Page 59580. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

EXTENDED TO DECEMBER 4. Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed changes to its Export Administration Regulations (EAR) pertaining to exports and reexports of dual-use items to the People's Republic of China (PRC). Dual use items include certain encryption products, information security products, fiber optic products, computers, and software. See, notice in the Federal Register, July 6, 2006, Vol. 71, No. 129, at Pages 38313-38321. See, notice of extension in the Federal Register, October 19, 2006, Vol. 71, No. 202, at Page 61692.

Day one of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

Election Day.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Plumtree Software v. Datamize, App. Ct. No. 06-1017, an appeal from the U.S. District Court (NDCal). Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Thompson v. Microsoft, App. Ct. No. 06-1073. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Missiontrek v. Onfolio, App. Ct. No. 06-1271, an appeal from the Trademark Trial and Appeal Board (TTAB). Location: Courtroom 203, 717 Madison Place, NW.

Day two of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee will meet. The agenda includes "Graphics Processors Technology", "Frequency Standards", "Telephony Signaling", "Phase Noise", and "Frequency Synthesizer Assemblies". See, notice in the Federal Register, October 25, 2006, Vol. 71, No. 206, at Page 62416. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers Committee will host a panel discussion titled "The Role of Mentoring in the Legal Profession". The speakers may include Kyle Dixon (Wilmer Hale), Marvin Ammori (Georgetown University Law Center), Judy Harris (ReedSmith) and James Sandman (Arnold & Porter). RSVP by November 3 to Colin Sandy at csandy at neca.org or LadyStacie Rimes at 202-682-5995. Location: Sidley Austin, , 6th Floor, 1501 K Street, NW.

Day three of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

Deadline to submit comments to the Office of the U.S. States Trade Representative's (USTR) Trade Policy Staff Committee (TPSC) regarding barriers to U.S. exports of goods, services and overseas direct investment for inclusion in the USTR's annual report titled "National Trade Estimate Report on Foreign Trade Barriers", or "NTE". See, notice in the Federal Register, August 14, 2006, Vol., No. 156, at Pages 46525-46527.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Federal-State Joint Board on Universal Service in response to the FCC's public notice [PDF] requesting comments regarding the use of reverse auctions to determine high cost universal service funding to eligible telecommunications carriers. This proceeding is WC Docket No. 05-337 and CC Docket No. 96-45. See, notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at Pages 50420-50421.

The House and Senate may meet at 2:00 PM. See, HConRes 483.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Managing E-Discovery Requests Under the New 2006 Federal Rules Amendments". The speaker will be Conrad Jacoby. The price to attend ranges from $80 to $135. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day four of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

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