Subject: [NEXTEL-1] COMMISSION STAFF CLARIFIES FCC’S ROLE REGARDING RADIO INTERFERENCE MATTERS AND ITS RULES GOVERNING CUSTOMER ANTENNAS AND OTHER UNLICENSED EQUIPMENT

From: [email-masked]
Date: Thu, 24 Jun 2004 16:06:31 -0400

DA 04-1844
June 24, 2004

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

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

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

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

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

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

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

Under FCC rules, fixed wireless customer antennas protected by OTARD are
those used to receive and/or transmit “fixed wireless signals” – i.e.,
commercial nonbroadcast communications signals “to and/or from a fixed
customer location.”   The rules do not limit their applicability only to
signals used in conjunction with a licensed service, or exclude signals
sent to or from an unlicensed device operating under Part 15 of our
rules.  In fact, the current applications of “mesh” and
point-to-point-to-point technologies discussed in the MO&O are
predominantly unlicensed devices providing service under the FCC’s Part
15.  In 2000, the FCC extended OTARD protections to include fixed
wireless technologies, refusing to distinguish protections based on the
services provided through the same customer antenna.  The FCC noted that
precisely the same customer antennas may be used for video services,
telecommunications, and internet access, and sometimes that a single
company might offer different packages of services using the same type
of customer antennas.  For these reasons, the FCC’s OTARD protections
apply regardless of whether the fixed wireless signals are delivered on
a licensed or unlicensed basis.
This action is taken under delegated authority pursuant to Section 5(c)
of the Communications Act of 1934, and Sections 0.5(c), 0.31, 0.204,
0.241 of the Commission's Rules, 47 C.F.R. §§ 0.5(c), 0.31, 0.2.04,
0.241.
Office of Engineering and Technology contact:  James Miller, (202)
418-7351, e-mail [email-masked].
--OET--
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-1844A1.doc

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