Legal Considerations for Telecommunications at Airports (2021)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

10 ACRP LRD 43 spectrum operations provide the licensee “the right to deter- mine the service to be offered, the technology to be employed to provide that service, and the right to exclude non-payers from accessing [its] service.”30 A licensee may also “protect[]… [its] service from harmful interference from other service providers” and “sell… [its] license to another party.”31 Unlicensed operators forego many of the spectrum rights offered to licensed opera- tions. Unlicensed operators may use authorized equipment to access spectrum. Unlicensed operators must accept the spec- trum as they find it because they must accept interference they receive and may not interfere with other users.32 Chapter IV fur- ther discusses licensed and unlicensed operations. Commentators have argued that the FCC has historically acted under a “wise man” theory of regulation through its ad- judication and rulemaking procedures, meaning that the FCC frequently decides what action it deems is in the public’s best interest at the time.33 “Wise man” decision-making often as- sumes that the agency “is capable of deciding what is best for the public” based on its subject matter expertise.34 This has histori- cally enabled the agency to implement sweeping interpretations within minimal reprisal from Congress.35 Courts have also fre- quently upheld FCC decision-making as reasonable, as further discussed in Chapters IV and V.36 Typically, the FCC adjudicates rule violations, licensing dis- putes, and other proceedings focused on specific acts or actors and uses rulemaking to implement statutes.37 Although this appears on paper as a straightforward adjudication and rule- making process, it is much more complicated in practice. The agency often intertwines multiple proceedings, resulting in confusing notices, orders, rules, and comments. For example, the agency has issued final rules, but also sought comment within those final rules on additional matters; it has also, issued declaratory rulings in the middle of the rulemaking process. Similarly, the agency may also accept notices of inquiry during rulemaking periods, and may respond to those notices, while leaving the complete rulemaking decision outstanding. 30 Mark M. Bykowsky, Mark A. Olson, William W. Sharkley, A Market-based Approach to Establishing Licensing Rules: Licensed Versus Unlicensed Use of Spectrum, OSP Working Paper Series 2 (2008). 31 Id. 32 See 47 C.F.R. Part 15. 33 Douglas W. Webink, A Working Paper on: Frequency Spectrum Deregulation Alternatives 10 (1980) (stating that the agency believes wise man theory on regulation is “critical to their ability to make decisions that fit the public’s best interest). 34 Id. 35 Benjamin, Stuart Minor. Internet and Tele com mu- nication Regulation, Carolina Academic Press (2019) (arguing that Congress overturning Internet privacy regulation in 2018 was an anomaly) [hereinafter Benjamin, Internet and Tele communication Regulation]. 36 See, e.g., City of Portland v. United States, 969 F.3d 1020, 1032 (9th Cir. 2020). 37 Benjamin, Internet and Telecommunications Regulation. working. Zigbee can quickly connect thousands of devices but has a limited operating range.25 d. Low Power Wide Area Networks (LPWAN) IoT applications have led to the development of LPWAN sys- tems that can transmit small amounts of data over long ranges for long periods of time at a low cost. Smart city technologies, industrial IoT, and smart utilities are all examples of systems that use LPWAN technologies. Specific LPWAN technologies will depend heavily on the use scenario that an airport con- siders. Density of the area and data transfer capacity will affect the LPWAN specifications needed to meet the demand.26 III. FEDERAL REGULATORY OVERVIEW Multiple federal agencies have regulatory oversight in this space. The FCC and FAA both regulate telecommunication issues relevant to airports at the federal level, while the FCC oversees commercial licensing of frequencies, unlicensed fre- quencies, antenna deployments and equipment authorizations, and system interference considerations.27 However, airports should be aware that both the FCC and FAA each have a role in antenna deployments or modifications and spectrum uses in certain circumstances that implicate aviation interests. FTC reg- ulations may also affect—or even target—airport telecommuni- cation activities through the FTC’s broad enforcement authority to oversee unfair and deceptive practices under its Section 5 authority or its antitrust enforcement actions.28 A closer look at these agencies’ subject matter jurisdiction and their adjudi- cation and rulemaking authorities provides important context to understanding their respective orders, rules, policies, and positions. A. Federal Communications Commission The FCC is an independent agency established by the Com- munication Act of 1934. The agency has broad authority to ad- judicate and regulate radio, television, wire, satellite, and cable communications in the public’s interest.29 The FCC’s jurisdic- tion includes oversight of common carriers, broadband access, fair competition, and radio frequency use. In short, the FCC licenses use of certain spectrums and authorizes the use of radio frequency emission equipment. Analysis of various FCC orders and rules reveals frequent reference to the FCC’s objectives to ensure telecommunications access for all, to promote innova- tion and competition, and to protect consumers and public safety. The FCC regulates spectrum use and the equipment that en- ables such use through licensed and unlicensed rules. Licensed 25 See ACRP Project 03-57. 26 Id. 27 47 U.S.C. §§ 151. 28 15 U.S.C. § 41. 29 See NBC v. United States, 319 U.S. 190, 215-216 (1943) (finding that Congress provided the FCC authority to police wave lengths to prevent interference and also allocate spectrum to serve the public interest).

ACRP LRD 43 11 airport sponsor.41 Some airport operators, however, have ques- tioned the application of these nondiscrimination requirements to the specific circumstances of telecommunications and simi- lar agreements. Airport operators will need to consider whether their dealings with telecommunication providers implicate compliance issues with FAA grant assurances. The FAA is working to enhance its information services and networking capabilities to support the national airspace. With new technologies demanding more and more data transfer capabilities, the FAA and aviation stakeholders have expressed concerns regarding the availability of spectrum. The FAA will begin transitioning its FAA Telecommunications Infrastructure to the FAA Enterprise Network Program in 2021. C. Joint FAA and FCC Spectrum Management Functions In addition to the issues described above, the FCC and FAA regulate various frequencies that deal specifically with ground- to-air and ground-to-ground communications or navigation equipment. These regulations include spectrum licenses, au- thorization procedures, and equipment requirements. The FCC works with the National Telecommunication and Information Administration (NTIA) to distribute spectrum within the avia- tion system. NTIA authorizes FAA frequency uses where an appropriate need is demonstrated and other spectrum-specific requirements are met. The FAA works with the NTIA’s Interdependent Radio Advisory Committee (IRAC) on spectrum management. The FAA chairs the IRAC’s Frequency Assignment Subcommittee (FAS) Aeronautical Assignment Group (AAG), which manages aeronautical spectrum for federal and non-federal uses. The FAS, through FAA Frequency Management Officers (FMO), temporarily approves frequency use applications. The FAS must review AAG frequency approvals before they become final. The FAA Area Field Coordinator works to pre-coordinate some spectrum requests before submittal to the FAS. Airports may deal with their FMOs when interference issues arise, or to sub- mit a request for a new or alterations to an existing Aeronautical Advisory Station. The FCC licenses all non-federal navigational aids and air- to-ground facilities. Airports operating such systems will have to obtain frequency approvals from the FAA and transmitting licenses through the FCC. D. Federal Trade Commission Finally, the FTC’s authorities include enforcement actions to protect consumers from deceptive or unfair practices, includ- ing in cases involving telecommunications uses in airports. This authority applies to Internet service providers, to include 41 See FAA Order 1400.11, “Nondiscrimination in Federally- Assisted Programs at the Federal Aviation Administration”, ¶ 4, pg. 14 (noting that Grant Assurance 30 applies to non-aeronautical activities whereas Grant Assurances 22 and 23 do not.); see also, 49 C.F.R Part 21, Nondiscrimination in Federally Assisted Programs for the Department of Transportation. B. Federal Aviation Administration The FAA’s primary objective related to telecommunications centers on its interest in protecting safety of flight. The FAA receives hazard notifications for antenna deployments near airports and for electromagnetic emissions that may interfere with flight safety systems. FAA priorities do not always align with those of the FCC. For example, in a 2008 comment by the FAA to the FCC regarding facility siting applications, the FAA made clear that FCC action did not obviate the need to comply with FAA regulations in this space, stating that “any FCC action on this petition does not in any way alter or amend the FAA’s regulatory requirements and process specified in Title 14 of the Code of Federal Regulations to require notice of structures that may affect aeronautical operations and facilities, evaluate aero- nautical effect of those structures, issue determinations regard- ing the impact of those structures and recommendations for the marking and lighting of those structures.”38 The FAA continued, “favorable action by the FCC on this petition does not in any manner affect or alter an airport’s responsibilities and compli- ance pursuant to 49 U.S.C. § 47101 et seq., and in particular its airport grant assurances under the Airport Improvement Pro- gram (AIP) and Passenger Facility Charge (PFC) program.”39 Chapter V further discusses siting applications. The FAA interacts with airports regarding telecommunica- tions in two specific ways. First, the FAA reviews telecommuni- cation deployment requests by airport operators and airlines to decide the extent of any adverse effect by the system and planned use on safe and efficient use of navigable airspace, facilities, or equipment. Second, grant assurance conditions may apply to airport telecommunication projects and business dealings. The con- struction of or any work related to towers or antenna may im- plicate Grant Assurances 19, 20, and 21 as required by 49.U.S.C. §§ 47107(a)(7), (9), and (10) in connection with AIP funding. Further, airports will need to closely consider grant assurance language when dealing with telecommunication providers or other related services providers. The FAA may apply non- discrimination requirements to telecommunication-related contracts if the airport has received a grant or other federal assistance on any other project.40 The FAA interprets Grant Assurance 30 to apply to non-aeronautical activities by the 38 See FCC Comment, Ref: WT Docket No. 08-165, September 29, 2008. 39 Id. 40 See FAA Airports, Assurances, Airport Sponsors (2020), https:// www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor- assurances-aip-2020.pdf (last visited Nov. 16, 2020); FAA Nondiscrimination in Federally-Assisted Programs, FAA Order 1400.11 (Aug. 27, 2013) https://www.faa.gov/documentLibrary/ media/Order/FAA_1400_11.pdf (last visited Nov. 16, 2020); FAA Airports, Contract Provision Guidelines for Obligated Sponsors and Airport Improvement Program Projects, (2018) https://www.faa.gov/ airports/aip/procurement/federal_contract_provisions/media/ combined-federal-contract-provisions.pdf see Table 1 – Applicability of Provisions, page 7.