Tuesday, August 11, 2009

OTARD Rules and the Changing Face of Telecomunications Technology

Recently I had been involved in an online discussion regarding the protections granted through the Telecommunications Act of 1996, and in specific, the Over-The-Air Reception Devices (OTARD) rule, which preempts restrictions on Direct Broadcast Satellite, Broadband Radio Service, and Television Broadcast Antennas.

In the course of discussion, a question was raised about whether there are similar rules or federal regulation that protects cellular telephone service antennas, protecting such antennas from deed restrictions. The discussion quickly broke down into a discussion and analysis of the OTARD rule and if it's provisions extend to cellular use. I argue that it does based on the language used in the section of the telecommunications act, Section 207, that references antennas. For ease I will cite the Federal Communications Commission's OTARD factsheet, but first I would like to review the 1996 act, as well as the original 1934 act to understand the intent of the law and how it may be applied to technology 75 years after its initial inception into Federal law.

The Communications Act of 1934 was inacted in 1934, obviously, establishing the Federal Communications Commission's (FCC) as the new regulatory body of radio, as well as interstate telephone services. One of it's main purposes was to open up markets to competition by removing regulatory barriers. During the 70s and 80s, a combination of techological advances, court cases, and changes in policy, had changed the landscape of the telecommunications business (considering the government sanctioned Bell System monopoly established under the act was broken up in 1984), which allowed for increased competition in some markets. It was eventually overhauled in 1996.

The Telecommunications Act of 1996 amended the original act, taking into consideration over sixty years of change, and had been broadened regulation to include cable television and information services. It had also allowed the act to preempt any state and local legal requirements that may present a barrier to entry into the market, going against the intent of the act to promote competitive marketplaces. One particular change was the distinction between providers of telecommunications services and information services... "telecommunications services" is defined as "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used", while "information services" is defined as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service". I mention this distinction only because I find it relevant to the eventual debate as to whether cellular services are protected by the OTARD rules.

The 1996 act is where the OTARD rule is introduced. The rule concerned restrictions on a viewer's ability to receive video programming signals from direct broadcast satellites, broadband radio services (formerly multichannel multipoint distribution service or MMDS), and television broadcast stations. The rule protected devices such as satellite dishes from local regulation, like a homeowners association denying installation of a dish because of aesthetic appeal. The rule was further ammended in 2000 to include under the protections customer-end antennas that receive and transmit fixed wireless signals. This leads to the debate over whether the rule protects cellular antennas.

The argument was divided into two camps: those who were under the belief that the rule does not apply and that cellular antennas and those who believe they are protected under the ammended provisions from 2000.

Regarding the OTARD rules, the FCC states that the following types of antennas are protected:

  • A "dish" antenna that is one meter (39.37") or less in diameter (or any size dish if located in Alaska) and is designed to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite.
  • An antenna that is one meter or less in diameter or diagonal measurement and is designed to receive video programming services via broadband radio service (wireless cable) or to receive or transmit fixed wireless signals other than via satellite.
  • An antenna that is designed to receive local television broadcast signals. Masts higher than 12 feet above the roofline may be subject to local permitting requirements.
The rule also states that these antennas can be placed on "masts" of a certain length to help capture an acceptable signal. The second type of antenna protected is one that can receive or transmit "fixed wireless signals". The FCC defines such a signal as the following:

  • Any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location. Examples include wireless signals used to provide telephone service or high-speed Internet access to a fixed location. This definition does not include, among other things, AM/FM radio, amateur ("HAM") radio (but see 47 C.F.R. §97.15), Citizens Band ("CB") radio, and Digital Audio Radio Services ("DARS") signals."
The argument against cellular antennas is that the rule does not provide protections for AM/FM radio, amateur radio, Citizens Band radio, or Digital Audio Radio Services. Because the rule does not specifically state "cellular telecommunications", it is therefore not protected, and can be regulated by state and local restrictions until the FCC makes a definite ruling.

I disagree with this opinion on numerous levels. I believe that the rule does apply to cellular antennas and the rule does offer protections for one's property rights. In the above quote from the FCC's factsheet, it extends protection to "fixed wireless signals", and includes both "telephone service or high-speed Internet access to a fixed location". Under the original 1996 act, I would have still been inclined to side with the individual, but the support of such argument would have been strenuous. Looking at the syntax of the quoted statement, "telephone service or high-speed Internet access" is protected. The use of the conjunction "or" does not require telephone service to be bundled with Internet access to be protected. Previous to the inclusion of "fixed wireless signals", regulation of cellular antennas alone may have not been covered because of the distinction between "telecommunications services" and "information services", where the classic argument "every square is a rectangle but not every rectangle is a square" may have proved detrimental to the defense of such devices but because technology has advanced greatly, even in the 13 years since the 1996 act was drafted, telecommunications and information systems are highly integrated with cellular phone carriers offering Internet and home "fixed" phones, cable television offering Internet services, and even Internet services offering telecommunications services.

The intent of the act was to increase competition in the market, and allowing regional legal restrictions limit access to interstate systems by restricting certain types of antennas would seem to violate the the federal law. Considering the same type of antenna can transmit and receive various types of signals, to deny an antenna based on what type of signal is used would seem to go against the act. Only allowing certain telephone services to be allowed because they are bundled with cable or internet services would foster non-competitive behavior against businesses trying to enter the market. If that is the case, corporations that provide cable, sattelite, or Internet could corner the wireless telecommunications market.

There was an argument made that taking into the consideration of the "nature" of cellular telephones, also known as "mobile phones", a cellular antenna is hardly a "fixed" wireless signal, but a mobile signal used in a "fixed" manner. Taking into consideration that wireless providers are now offering services that connect a home's analog systems to a wireless antenna. To interpret the law as such would be absurd, as if in 1934, radios would not be allowed in cars because they were clearly intended to be used in the home. The act does not define what type of telephone services of a fixed wireless nature are, but simply includes telephones services as a protected type of signal transmitted or received.

As a side note, the rule also does not define what radio frequencies are and are not covered by the rule. CB radio is not protected (3-30 MHz), and neither is amateur radio which spans from 30 kHz to 300 GHz is not covered, nor is AM/FM radio (30 kHz-300 MHz), but broadcast television (30 - 3000 MHz) and sattelite television (3 - 30 GHz) are. Cellular frequencies range from 300 - 3000 MHz. It simply protects certain signals and their reception devices.

There is also the recent FCC ruling regarding a petition filed by Continental Airlines versus Boston-Logan International Airport extending protection to Wi-Fi use.

A statement from Commissioner Michael J. Copps stated in reference to the Continental Airlines' Petition for Declaratory Ruling Regarding the Over-the-Air Reception Devices (OTARD) Rules:

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 membersonly 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.
A statement from Commissioner Johnathan S. Adelstein stated:

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.
To look at the matter simply, Wi-Fi, like cellphones, operates off of radio technology, but it is not explicitly mentioned in the OTARD rules that "Wi-Fi" antennas are acceptable. This leads to my argument that until proven otherwise, cellular antennas are protected under OTARD rules until they are sucessfully petitioned by a government or organization. I come to this conclusion because according to the rules, burden of proof that a particular restriction or regulation is valid lies on that of the party trying to enfroce such restriction or regulation, so until validation from the FCC is obtained, any restriction would be deemed "invalid".

The FCC also mentions the following regarding restrictions:

  • A local restriction that prohibits all antennas would prevent viewers from receiving signals, and is prohibited by the Commission's rule. Procedural requirements can also unreasonably delay installation, maintenance or use of an antenna covered by this rule. For example, local regulations that require a person to obtain a permit or approval prior to installation create unreasonable delay and are generally prohibited. Permits or prior approval necessary to serve a legitimate safety or historic preservation purpose may be permissible. Although a simple notification process might be permissible, such a process cannot be used as a prior approval requirement and may not delay or increase the cost of installation. The burden is on the association to show that a notification process does not violate our rule.
So basically, if any local restriction tries to prohibit a viewer from receiving or delaying reception of such signals, that restriction would also be invalid. Considering the rule does not specifically state "cellular antennas", just as it did not specifically state "Wi-Fi antennas", yet Continental Airlines was allowed to maintain their Wi-Fi antenna until a determination was reached, I would come to believe that cellular antennas, until proven otherwise, are protected... not to mention the FCC states that "the restriction cannot be enforced while the petition is pending."

According to a response from the FCC regarding an inquiry, the FCC stated the following:

The OTARD rules prohibit restrictions on a property owner or tenant's right to install, maintain, or use an antenna to receive VIDEO programming from direct broadcast satellites (DBS), broadband radio services (formerly referred to as multi-channel multipoint distribution services or MMDS), and television broadcast stations (TVBS). Thus the installation of a cellular booster antenna would not fall under the OTARD rules since cellular service is not considered a video service.

Cellular "repeaters", "boosters or "amplifiers" may be installed only by the LICENSEE (cellular service provider). Cellular end users are not the licensee. These fall under Parts 22, 24 and 90 the rules, which are available online from a link at wireless.fcc.gov/rules.html - in particular, see 90.219 and 22.383. Contact the licensee for installation.
I do not understand one thing...

The FCC stated in their response that antennas used to "receive VIDEO programming from direct broadcast satellites (DBS), broadband radio services (formerly referred to as multi-channel multipoint distribution services or MMDS), and television broadcast stations (TVBS)" are covered by the OTARD rules.

According to their fact sheet, "fixed wireless signals" are covered, which includes "wireless signals used to provide telephone service or high-speed Internet access to a fixed location".

The fact sheet also states that someone can install an "antenna that will be used for voice and data services even though it does not provide video transmissions".

So, what exactly is the definition of "telephone service", in regards to wireless signals, and why does the FCC's response stress "VIDEO" when their fact sheet states that covered antenna's do not need to provide video? And according to a Competitve Network Report and Order (FCC 00-366) from October 25, 2000, the FCC extends "to antennas that receive and transmit telecommunications and other fixed wireless signals our existing prohibition of restrictions that impair the installation, maintenance or use of certain video antennas".

I am not trying to be argumentative, but I find the FCC's response to be inconsistent with their published material.

My conclusion is that this situation is an instance in which technology outpaces the legal system, leaving a regulatory void with those who wish to fill it with their own interpretations and rules, me included.

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