Legal Considerations for Telecommunications at Airports (2021)

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ACRP LRD 43 3 LEGAL CONSIDERATIONS FOR TELECOMMUNICATIONS AT AIRPORTS Sean Cusson, Del Ray Solutions LLC, Alexandria, VA I. INTRODUCTION Airports face numerous, simultaneous telecommunications challenges on any given day. The deployment of telecommu- nication systems, management of networks, and dealings with telecommunication or information service providers, airlines, other tenants, concessionaires, and passengers create multiple legal issues for airport operators. This digest examines federal requirements for various aspects of telecommunications at air- ports, to include both current issues and those implicated by emerging trends. Airport attorneys should be able to use this digest as a general reference to identify areas of concern, as well as to locate more detailed information that may be useful in ad- dressing specific legal questions regarding telecommunication services or equipment. Hypotheticals Terminal Congestion It is the end of the week, and a typical U.S. airport is busy with business travelers flying home and vacationers heading out for a weekend getaway. To accommodate the travel, air- lines have a full team of staff at the check-in areas and gates, passenger assistance teams are ready, and airport operations teams are monitoring events throughout the airport. The air- port has also recently deployed a passenger analytics system to track passenger movement and a new express payment technol- ogy that enables users with the airport app to pick up items and pay on-the-go. A business traveler arrives at the airport early, excited to get home but wanting to participate in a last-minute video con- ference call before boarding the flight. In a rush, the business traveler leaves a personal item at the check-in kiosk. The busi- ness traveler makes it to the gate and finds a comfortable seat to setup for the video call. The gate area is busy, and the business traveler quickly sees that many people are using their devices to make phone calls, check email, livestream videos, or play games as they wait for their flights. The business traveler connects to the airport Wi-Fi and notices the connection speed is slow. The video conference is unable to load on the airport Wi-Fi. The business traveler as- sumes (rightly) that the slow connection is caused by congestion or wireless interference in the area. But unbeknown to the busi- ness traveler, not only are all the other waiting passengers using the airport Wi-Fi, but the airport is also simultaneously operat- ing multiple telecommunications systems, some of which may interfere with one another. Both the passenger analytics system and express payment technology, for example, use wireless technologies to communicate among multiple endpoints. The pedestrian analytics technology is busy sending analytics to its control station, and many people are using their smart devices to purchase refreshments and other items from the concession- aires. The airport Wi-Fi is at capacity with so many wireless sys- tems sending competing signals over the same bandwidth. To avoid any further disruptions, the traveler attempts to use a cellular phone hotspot. However, the area the traveler is sitting in has historically had poor cellular reception and the situation worsens when the terminal is busy. The airport has considered a distributed antenna system (DAS) to address the problem but has concerns about causing interference with boosters that two major airlines have deployed in the area for their own opera- tions. Frustrated because she cannot connect to the video con- ference even over a cellular phone hotspot, the business traveler chooses to use another nearby airport for the next trip back to the area. Before leaving the airport, the traveler tweeted about her decision to choose a different airport for her next travels, explaining that the Wi-Fi and cellular service made the airport unfriendly to business travelers. On a positive note, the airline found the business traveler’s forgotten item at the check-in kiosk, and an agent at the check- in desk was able to use a Public Land Mobile Radio (PLMR) to contact the business traveler’s gate agent, alerting the traveler just prior to boarding the flight. At the same time airport agents were using the PLMR system to communicate about the for- gotten item, a family of five traveling with an infant arrived on a flight at a nearby gate. The family’s gate agent similarly used a PLMR to contact passenger services to request assistance for the family as they deboarded the plane and retrieved carry-on items, including a car seat and stroller. Thanks to the airport’s network management strategy, however, the agents’ simultane- ous PLMR communications were successful; the business trav- eler received the item and the family its assistance. The following Monday, the rush of end of the week travel behind them, airport IT asks the airport attorney to evaluate proposed strategies to mitigate the network congestions the air- port experienced that weekend and to review a draft RFP for a new DAS. Vacant Facility A second airport is planning to fill a vacant facility in a remote area of the airport perimeter. The facility has multiple interested tenants: a cargo airline, an airline looking for main- tenance space, a flight school, a fixed base operator, and a local non-aviation company looking for warehouse and office space. The facility has outdated telecommunication equipment and will need upgrades for any new tenant. The airport must decide whether it wants to control the deployments within the facility or allow the new tenant it chooses to deploy its own systems.

4 ACRP LRD 43 The airport’s main terminal building has fiber cabling throughout; however, extending that cabling out to the remote facility may not be beneficial, given the costs of installing cabling so far away from the network provider’s base station, and the compromised quality of the bandwidth that would likely result. As an alternative, the airport’s IT team is looking at a point-to- point wireless system that may enable it to connect the remote facility with the main terminal building’s network. The airport needs to understand whether its planned use requires licensed spectrum, what type of equipment it can deploy, and the options it has in dealing with the network providers and the new tenant. These brief hypothetical scenarios represent a few of the common telecommunication issues that occur routinely at airports across the United States. Continuing advancements in technology and adoption of smart devices has created demand for high-speed connectivity and additional challenges in man- aging spectrum use. And as demonstrated above, airports have multiple types of business and personal uses working simulta- neously, which require airports to make interrelated decisions regarding technology investments, operational imperatives, passenger services, and community relations at their facili- ties, all with the ultimate goal of creating a seamless passenger experience. A multitude of options exist for airports seeking to balance these needs, from proactive network management to offering services to permitting airlines, tenants, or third parties to take initiatives themselves. A. Telecommunications Background Telecommunication technologies and uses have changed rapidly over the past two decades, and they continue to evolve to meet the demands of consumers who rely on new, multi- functional smart devices. People frequently carry multiple smart devices, often for different uses, both personal and busi- ness oriented. Those devices require cellular or wireless Internet connections to instantaneously gather and share informa- tion. These devices can also “speak” to other systems through low power wireless connections called machine-to-machine (M2M) communication, increasing radio frequency conges- tion. In addition to individual consumers, businesses deploy tele communication technologies, such as mobile kiosks, signal boosters, and analytics tools, via various connected systems. These technologies create operational efficiencies and gener- ate profit opportunities. As smart devices for both personal and professional uses become more sophisticated and more users seek connections to cellular and Internet services, demand will test cellular and Internet bandwidth capacities and network management strategies. Required cellular and Internet bandwidth levels will change based on airports’ operational and business strategy demands. Bandwidth is the volume of data transmitted by a cellular or Internet connection within a given amount of time. This im- pacts the speed at which devices can operate and how many users a network can host without service disruptions. Therefore, the more processing capacity and speed required will dictate the bandwidth need. U.S. airports represent a unique blend of personal and busi- ness uses for these modern technologies. For example, airport operators use a range of connected systems for administrative purposes, to run their daily operations, and for emergency response and security purposes. Some airports offer tele- communications services to airlines, tenants, and passengers to enhance customer experiences or to increase non-aeronautical revenues. Airlines use a variety of communications technolo- gies to run their operations, with the intended effect of bettering their customer service and performance for passengers. Tenant busi nesses rely on connected technologies for business efficien- cies and may also choose to provide an Internet connection to customers as a service. Finally, travelers now expect the ability to seamlessly connect their communications and data systems as they travel. As the industry proceeds to develop seamless pas- senger journey, these devices are becoming an increasing part of the travel process. For all these reasons, airports must respond to telecommunication changes swiftly to serve their communities, remain competitive, and capitalize on market opportunities. Cellular service requires nearby antenna towers and repeaters within buildings to support service. Internet connec- tions rely on copper wiring or fiber and wireless Internet con- nections. Cellular and Internet providers continue to develop and offer enhancements to advance connection capabilities, speed, and bandwidth. These enhancements will require cellu- lar, fiber, or wireless distribution equipment upgrades or new system deployments. As airports seek to accommodate and capitalize on develop- ing telecommunications technologies, they face a complicated regulatory picture. The Federal Communication Commission (FCC), charged with providing equal access to wire and radio communication services, regulates airports’ abilities to restrict wireless antenna deployments within their facilities and their abilities to deploy cellular and Internet distribution systems. The Federal Aviation Administration (FAA) reviews deployments of cellular towers and antennas to ensure the safe flight of aircraft. The FAA may also evaluate telecommunication dealings and projects under the auspices of grant assurance requirements. Finally, the Federal Trade Commission (FTC) oversees unfair and deceptive trade practices as well as antitrust violations that may implicate the service airports receive or provide. In addition to these federal regulatory requirements, state and local laws and ordinances may also affect airports’ tele- communication activities. Although this digest will focus on federal requirements, it will also discuss state and local issues related to facility siting, i.e., antenna deployment. States and localities have traditionally regulated telecommunication to ensure availability, reliability, affordability, and ubiquitous tele- communication services. State and local regulators tend to have an active role in technology transition and may arbitrate inter- connection agreements or resolve disputes; however, states do not often regulate wireless activity. In addition, states and cities have siting laws and policies for cellular equipment deploy- ments. For example, cities typically charge wireless carriers for hanging their equipment on cities’ utility poles, and some cities

ACRP LRD 43 5 gers, and others; alternatively, airports may grant providers access to their facilities to deploy systems. • Airport operators can help facilitate spectrum use within their facility but must ensure their practices do not prevent or unreasonably delay third-party system usage. • Common carriers cannot enter into contracts that prevent an entity from allowing other carriers to access the entity’s facility. C. Related ACRP Projects ACRP has published numerous reports on telecommunica- tion issues, information technology, or network management concepts that apply to this topic. Many of the concepts discussed in the following reports and projects are incorporated through- out this digest. • ACRP Synthesis 31: Airline and Airline-Airport Consortiums to Manage Terminals and Equipment • ACRP Report 33: Guidebook for Developing and Managing Airport Contracts • ACRP Report 59: Information Technology Systems at Airports – A Primer • ACRP Report 87: Procuring and Managing Processional Services for Airports • ACRP Report 111: A Guidebook for Airport-Airline Consortiums • ACRP Report 127: A Guidebook for Mitigating Disruptive WiFi Interference at Airports • ACRP Report 128: Alternative IT Delivery Methods and Best Practices for Small Airport • ACRP Research Report 184: Executive Summary for the Guidebook on Understanding FAA Grant Assurance Obligations • ACRP Research Report 191: A Primer to Prepare for the Con- nected Airport and the Internet of Things • ACRP Research Report 211: Guidance for Using the Inter- active Tool for Understanding NEPA at General Aviation Airports • ACRP LRD 42: Legal Implications of Data Collection at Airports • ACRP LRD 16: Procurement of Airport Development and Planning Contracts • ACRP Web-Only Document 44: Understanding FAA Grant Assurance Obligations Volume 1: Guidebook • ACRP Web-Only Document 44: Understanding FAA Grant Assurance Obligations Volume 4: Summary of AIP Grant Assurance Requirements • ACRP Project 03-57, “A Guidebook to Prepare Airports for Transformations in Wireless Connectivity” (research antici pated December 2021) D. Chapter Summary Chapter II explores emerging telecommunication trends and technical changes. have challenged the FCC’s order to speed deployments of small cell antenna technology.1 Finally, airport operators must consider network manage- ment practices surrounding their telecommunication deal- ings. Telecommunication network management follows similar principals to general IT management but requires closer con- sideration of federal license, authorizations, and obligations. Airports may choose to actively manage the diverse network operations that occur within their facilities; alternatively, they may play a less active role by allowing tenants or third parties to manage all or a portion of the telecommunication networks in use. In choosing either path, airports must understand the protections they may have and the obligations they may have to other operators, under the applicable laws and regulations. Air- port operators must also consider the service level agreements (SLAs) they may have with service providers or their network management companies. SLAs address issues like processing speeds and cybersecurity protections, and preventative main- tenance or problem-solving responsibilities. Airports must also consider their obligations to users of their networks, and the service levels they have committed to provide those users. B. Key Considerations • Airports should consider bandwidth and emission require- ments for their operational needs before choosing a net- work service and whether they need licensed or unlicensed spectrum. • Airports should consider how their systems will be config- ured, deployed and the effects the system will have on have on facility, airline, tenant, concessionaire, and passenger use patterns. • Airport operators must consider state and local facility siting rules. Airports’ roles and responsibilities regarding application reviews will vary airport to airport. Airports must consider the effect of their siting decisions on their own antenna deployment plans. Alternatively, airports must consider how their antenna deployments will affect their antenna deployment applications. • Airports must be careful that their deployments do not inter fere with or jam other spectrum uses. • Airport operators may consider a master SLAs policy that establishes a baseline for contractual obligations with network service providers, network managers, airlines, tenants, and passengers. • SLAs with Internet and cellular service providers should ensure adequate bandwidth for the planned use and es- tablish acceptable spectrum management practices. This should include discussions of speed, blocking and throt- tling, and backhaul. • Airport operators can choose to provide Internet or cellular services directly or through a contracted service provider as a paid service or as an incidental benefit to tenants, passen- 1 Small cells are backpack-sized antenna that provide higher capacity cellular coverage but cover less area, with ranges between 10 meters and 2 kilometers.