Legal Considerations for Telecommunications at Airports (2021)

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28 ACRP LRD 43 Second, Massport argued a special use exception should apply to the OTARD competitive access requirement because of safety concerns and overall management responsibilities. The FCC disagreed, stating that OTARD provides no “express exception for government entities” and that it found no reason to extend an exception to “state and local authorities…acting in a proprietary capacity as landlords.”265 The FCC noted that Massport’s argument that OTARD does not apply to college dormitories does not apply to Massport’s case. The FCC dis- tinguishes the relationship between the college and its students from that of a landlord and tenant engaged in a commercial lease.266 Airport operators must consider OTARD rules when en- gaging with tenants regarding system deployment and net- work management. Airport operators have legitimate interests in facilitating telecommunication uses within their facilities as tenants continue to deploy new systems increasing congestion and interference. Airports may facilitate use through network management practices, but the airport may not prevent a tenant from deploying a system. VI. TELECOMMUNICATIONS NETWORK MANAGEMENT Network management has evolved as a policy concept through FCC rulemaking. As technologies continue to progress, the FCC has tried to shape policy around the changing systems to, at a high-level, manage spectrum uses and mitigate interfer- ence issues. The telecommunication service and information service debate discussed in Chapter IV provides a prime ex- ample of this. Users can now make phone calls over traditional phone lines or through voice over Internet Protocol, challeng- ing the basic tenants of the FCC regulatory framework for Title II telecommunication services and information services. Many policy questions have proven politically charged at times and difficult for the FCC to balance when addressing the spectrum management and interference issues. Airport operators must monitor FCC proceedings for rule changes that may affect obli- gations of their service providers or their own obligations based on their licenses, authorizations, or business dealings. Airport operators’ considerations for telecommunications network management encompass spectrum management and interference mitigation. Airports must consider these issues from the perspective of an operator, regulator, and at times a neutral third party. Airport operators have an interest in ensur- ing their networks run smoothly and have the appropriate band- width without interference. Some airports may choose to pro- vide network services to their airlines, tenants, and passengers. This may affect their SLAs with network service pro viders and require that they implement SLAs with the end users. Finally, and Order and Further Notice of Proposed Rulemaking, IB Docket No. 95-59, 11 FCC Rcd. 19276, 19290-91). 265 Continental Airlines, at ¶ 31. 266 Continental Airlines at ¶ 32 (citing Implementation of Section 207 of the Telecommunications Act of 1996, Second Report and Order, 13 FCC Rcd. 23874, ¶ 29 n.73 (1998)). Airports Council International–North America (ACI-NA) and the American Association of Airports Executives (AAAE) responded to the FCC’s request for comment. The associations’ joint comments argued that airport operators should be ex cluded from the nondiscriminatory rule because of unique safety and operational concerns at airports and because the combination of FAA and state and local regulations provide adequate protec- tions for competition.260 Additional OTARD reports and orders have not addressed the state and local government question; nor has the FCC responded directly to the ACI-NA and AAAE comments. However, the FCC did act against the Massachusetts Port Authority (Massport) in 2006, disregarding the requested exemptions for airport authorities and dismissing Massport’s similar arguments in its defense. In the Matter of Continental Airlines involved a complaint filed by Continental Airlines against Massport.261 Massport had demanded the airline remove a Wi-Fi transmitter because it violated the lease terms. Continental operated a small Wi-Fi transmitter out of a closet in its lounge for the benefit of lounge attendees and some of their employees. The Wi-Fi connected to the Internet over a pre-existing T-1 line. Continental argued the lease provision was unenforceable because of OTARD. Massport argued that OTARD was inapplicable because of availability of their airport-wide Wi-Fi backbone. Additionally, and among other arguments, Massport argued that Continental’s Wi-Fi system interfered with public safety communications and that the government exception should apply. The FCC found that the lease terms restricted Continental’s use of its antenna. The FCC noted that Massport did not demonstrate that any OTARD ex- emptions applied. The FCC found that Massport’s lease terms unreasonably impaired Continental’s ability to install, use, and maintain an antenna.262 Of the many defenses Massport raised, two merit discussion here. First, Massport argued that OTARD did not apply because of a public safety exception. However, the FCC found that a public safety exception did not apply where Continental’s Wi-Fi antenna may interfere with public safety operations at the air- port. The FCC stated that Part 15, which governs the operation of unlicensed operations and devices, addresses interference concerns.263 Additionally, the FCC stated that the public safety exception applies to physical concerns. The exception applies to “such hazards as interference with line of sight at an intersec- tion, inadequate bolting or guying of antennas, and obstructing fire exits, as well as compliance with our RF emissions standards and local health regulations.”264 260 See ACI-NA and AAAE comments to Competitive Networks Report and Order, https://www.fcc.gov/ecfs/filing/5507716401 (last visited August 12. 2020). 261 In the Matter of Continental Airlines Petition for Declaratory Ruling Regarding Over-the-Air Reception Devices (OTARD) Rules, Memorandum Opinion and Order, 21 FCC Rcd. 12301, (2006) (hereinafter Continental Airlines). 262 Id. at ¶ 27. 263 Id. at ¶ 30. 264 Id. at ¶ 24 (citing Preemption of Local Zoning Regulation of Satellite Earth Stations, Report and Order, Memorandum Opinion

ACRP LRD 43 29 ment. However, both municipal airports and authorities should coordinate with appropriate government offices regarding siting applications that may impact the airport. Additionally, airports run by state or city departments may be restricted to negotiating with specific network providers. In some cases, state or city governments have pre-negotiated con- tracts with service providers that airports must use for their net- work needs. Under such circumstance, airports may have little ability to negotiate more favorable terms or pursue alternative deployment options. B. Business and IT Strategies Airports’ overarching business strategies will affect the tele- communication systems airports are willing to invest in, how airports deal with service providers, tenants, and passengers, and how airports manage network congestion. This involves the airport deciding whether it wants to provide telecommunica- tion networks as a service or as a revenue development oppor- tunity; it may even consider options that involve lesser or no air- port involvement. Further, the airports must consider how these options impact their overall IT priorities, operational needs, and their capability to operate and maintain systems. For cellular and Internet services, airports must decide the deployment approach that works best to achieve their telecom- munication needs. This decision involves an analysis of the capability needs and complexity of the deployment, cost, rev- enue opportunities, and stakeholder interests in the capability. With these factors in mind an airport can decide between pri- vate, third party, public network, or hybrid approaches.269 • Private: airport deploys equipment, manages and main- tains the network, and incurs all costs. • Third-party servicer: the third-party servicer deploys equipment, manages and maintains the network, and incurs all costs. • Public network: a cellular or Internet service provider de- ploys equipment, manages and maintains the network, and incurs all costs. • Hybrid: multiple hybrid models exist. One example could involve an Other Transaction Authority (OTA) where the airport provides access for a portion of revenue collected, a network manager deploys and upgrades cellular and wireless enhancement capabilities, the network managers contracts with service providers, and the network manager collects advertisement revenue. Airports can make different decisions for different capabilities dependent on how those network business dealings, liabilities, costs, and regulatory requirements match with the airports’ overarching strategies. These assessments will involve the level of accountability the airport wants to accept, the air- port’s immediate needs and stakeholder needs versus long-term 269 ACRP Project 03-58 will further discuss these options. airports may seek to facilitate the use of telecommunication equipment by managing spectrum allocation and emissions. Here the airport must use caution to not regulate telecommu- nication or information services in a manner preempted by fed- eral law, prohibit a service, or prohibit or unreasonably delay the deployment of small antennas.267 These telecommunication regulatory imperatives may serve to limit an airport’s choices in business and IT strategy. In developing effective legal strategies and policies, airport operators will need to balance their governance structures and business objectives with their telecommunication needs, spec- trum management challenges within their facilities, and pos- tures toward airline and tenant relationships. To accomplish this, airport operators must have a clear understanding of their telecommunication needs and goals and the needs and goals of those of their airlines and tenants. The answers to these ques- tions will lead the airport to the types of telecommunications services used within their facilities and, consequently, the types of network management challenges that may arise. Airport op- erators can then build a network management strategy based on how proactive they want to be regarding telecommunication issues. This chapter will overview factors that may affect airport decision-making regarding telecommunications network man- agement issues. Further, this chapter will offer key legal and policy considerations for airport operators to address the issues from a network management standpoint. A. Airport Governance At the most basic level, airports’ governance structures will dictate how airports approach telecommunications network management issues. Airports typically operate as departments of state or city governments or as independent quasi- government authorities.268 This distinction between operating governances affects how airports make decisions, how they authorize and restrict certain actions, and or how they enforce compliance. It also affects airport abilities to use alternative procurement or transaction strategies. For example, an airport entity that is a city department may have to go to another department for review or approval of sit- ing applications that may affect the airport. The airport may be the direct decisionmaker, or it may have to work with another state or municipal department to provide input on the applica- tion. Similarly, the application review may be affected by state or municipal rules that may or may not favor the airport’s busi- ness strategies and operation. In contrast, an airport authority may have more limited say or awareness in siting applications because it is not a direct member of the city or state govern- 267 See Chapters IV and V. 268 See Barich, Inc. (2015). ACRP Report 128: Alternative IT Delivery Methods and Best Practices for Small Airports. Transportation Research Board of the National Academies, Washington, D.C., https:// doi.org/10.17226/22198 (Stating that some smaller airports are private businesses and often operate similar to airport authorities and report to a board of directors) [hereinafter ACRP Report 128].

30 ACRP LRD 43 deployment challenges of the facility, the number of users, and necessary quality assurances will dictate whether the airport pursues a telecommunication or information service. As an example, an airport may choose a commercial mobile service that has Title II obligations or a mobile broadband service that is considered a private mobile service and therefore exempt from Title II obligations. The clear statement of purpose will also help the airport assess the terms for the appropriate balance between service level and equipment deployments. For example, if an airport wants 5G to enhance service speeds and capacity, it will need to make sure the service provider agrees to install proper equip- ment and provide the appropriate service capability.276 Alterna- tively, the airport may want to provide 5G capability but may be more concerned with the number of small cells that need to be deployed than the total bandwidth made available in a facility. Many variances of these examples exist and even exist within as single deployment. Airport attorneys should work closely with their technical experts to ensure the contractual language provides adequate capability for deployment. Airport operators must also consider the length of the agree- ment in relation to requirements to upgrade systems and meet increasing congestion. Cellular and wireless broadband capa- bilities continue to improve, and consumers demand access to the fastest services to use their cutting-edge smart devices. As airports are working to deploy 5G technology, 6G is on the hori zon for deployment in 2030. Similarly, as Wi-Fi 6 is coming to market, Wi-Fi 7 is in development. Any long-term service contract must consider system enhancements and potential need for growth to meet increasing user demands for band- width. Similarly, longer-term contracts should consider deploy- ment changes that may have to occur because of facility design changes. Smaller or more niche usage scenarios may not require such contractual language. Bandwidth needs will affect negotiations with service pro- viders as service providers try to manage bandwidth through restrictions like use limitations or prioritization. After deploy- ments, airports should assess whether their services meet the agreed upon bandwidth levels.277 Agreements should therefore provide compliance standards and audit procedures, as ad- dressed further in the SLA discussion below. D. Service Level Agreements SLAs have become increasingly important because of grow- ing demands and expectations for bandwidth, changing roles of network providers and airports, and emerging telecommu- nication equipment. An effective SLA “identif[ies] expectations and should have enough specificity to be both verifiable and 276 See Chapter III discussion of 5G equipment. 277 Carroll, M., Stambaugh, H., Kolesar, J., Berger, S., Benaman, H., & Varwig, Z. (2015). ACRP Report 127: A Guidebook for Mitigating Disruptive WiFi Interference at Airports. Transportation Research Board of the National Academies, Washington, D.C. https://doi. org/10.17226/22187 [hereinafter ACRP Report 127]. objectives, and unique attributes of the airport facility and com- munity relations.270 Consortiums provide a unique way for airport operators to finance deployment, operation, and maintenance of cellular or wireless systems and to control network congestion issues.271 ACRP’s Synthesis 31: Airline and Airline-Airport Consortiums to Manage Terminals and Equipment found 30 consortiums in operation at U.S. airports at the time of the study. Of the 14 con- sortiums studied for the project, 11 were legal entities and eight were non-legal entities.272 The study found benefits of common use, specialization of equipment and systems, maintenance, consistency of standards, and easier management of SLAs. Of note, an airport can structure the consortium or avoid partici- pation in the consortium to use alternative procurement strat- egies.273 The consortiums also typically indemnify the airport from liability.274 Orlando International Airport adopted a consortium ap- proach to enhancing cellular services within the terminal for its core airlines. Each airline was deploying its own systems to enhance connectivity and causing interference. The airport pro- posed a partnership model to the airlines with the goals of level- ing the playing field, preventing interference, and managing and controlling access to their facilities. The airlines agreed to a joint DAS system where the airlines would agree upon services and pay for the equipment and facilities, siting, and maintenance. The equipment is in the airport’s name as a facilitator that owns the property, manages contracts, and collects fees. If an airline wants a specific enhancement or service, it can obtain it, but may need to pay an added fee to the airport to cover the en- hancement. All equipment and added services are run through the DAS. The approach was so successful that the airport and its airlines are considering a similar approach for wireless Internet services. C. Service Provider Agreements A clear statement of purpose for telecommunication deploy- ments will help airports identify the appropriate service and negotiate favorable terms. Having the clear understanding of the scenario will dictate the type of service needed and there- fore change the basic responsibilities of the service provider.275 Dependent on the purpose of the use, the services available and 270 ACRP Report 128. 271 Paul B. Demkovich, et al. ACRP Report 111: A Guidebook for Airport-Airline Consortiums. Washington, DC: The National Academies Press, 2014. https://doi.org/10.17226/22319; Demkovich, P. (2011). ACRP Synthesis 31: Airline and Airline–Airport Consortiums to Manage Terminals and Equipment. Transportation Research Board of the National Academies, Washington, D.C. https://doi. org/10.17226/22834 [hereinafter ACRP Synthesis 31]. 272 ACRP Synthesis 31, at 6. 273 Id. at 16. 274 Id. at 13 (noting that eight of the consortiums studied required each airline participating in the consortium to indemnify the consortium). 275 See telecommunications service classification discussion in Chapter V.

ACRP LRD 43 31 E. Spectrum Management Airports may choose to play an active role in managing spectrum usage within their facilities for wireless, cellular, and PLMR systems. Airports that want to control tenant relations and access to their property, have concerns with multiple sys- tems being deployed, and want to provide high quality cellular and wireless connectivity to their tenants and passengers may take a more active role. These airports must ensure their spec- trum management practices do not impermissibly prevent ac- cess to service providers or prevent or unreasonably delay the deployment of small antenna capabilities. Other airports let their tenants deploy and manage their own wireless capabilities based on operational needs. F. Emergency Response Considerations A multitude of emergency situations can occur within the various areas of an airport’s property that will require connec- tivity for a diverse set of stakeholders. The airport must ensure their operational, first responders, law enforcement, and secu- rity teams have quality and stable communications streams. First responders may also come from off-airport with a need to link into the telecommunication system or to use their own equipment and interoperate with airport systems. Finally, other government agencies or the press may come to the airport for events and require access to networks or simply create added congestion to airport networks. Airports must therefore evalu- ate the capabilities they have in place and plan resources accord- ing to their needs. Planning for telecommunications service during events and incidents is a critical function in overall air- port emergency management. G. Network Security Providing an open wireless network creates cybersecurity vulnerabilities for all users, including the airport, its tenants, and the traveling public. Malicious actors can intercept data sent on an open network and can install viruses onto devices con- nected to an open network. Airports must consider their obliga- tions to protect these users. Additionally, the network provider may be liable for civil damages if it does not meet the security enforceable.”278 Additionally, the SLA clarifies expectations of all parties, and drives equipment selection and network archi- tecture for network management.279 ACRP Report 127 provides helpful SLA considerations, such as the SLA elements listed in Figure 4.280 Effective SLAs will assist the airport operator in managing interactions with service providers and airlines, ten- ants, or passenger users. Airports that take a larger interest in Internet and cellular net- work delivery, as either an intermediary or a revenue- generating interest, should consider using a master SLA as a policy docu- ment. In these cases, the master SLA can play a broader role than discussed in ACRP Report 127, where the SLA operates as the core component of the network providers contract.281 As a policy document, the master SLA can consider multiple network deployments, to include both cellular and Internet, drive contracts with network providers, guide airport decision- making as a network user and as a provider. The document will assist in network management decisions and investments in equipment and other network capabilities. Airports should regularly review and update their SLAs and master SLA to adjust for technology changes and improve qual- ity and reliability.282 Technology enhancements, new use cases, and network management challenges that develop can all be ad- dressed in SLA updates. Telecommunication providers will often have blanket con- tracts that they use when dealing with large businesses. Alter- nately, some providers may already have agreements in place with state or local governments that the airport will leverage for services. Airports should consider whether these blanket terms will ensure adequate bandwidth and coverage for the planned projects. If the projects involve third parties receiving broad- band access, the airports should negotiate SLA terms to meet the expectations of the third parties that will receive the service. Similarly, the airport should not guarantee any service to a third party that is not covered under the service provider SLA. New revenue strategies may require airports to alter or fore- go their typical SLA practices. For example, Google’s Orion, as discussed in Chapter II, does not require that sellers or buyers agree to SLA terms. Google has tried to create an easy-to-access platform that lowers barriers to entry to reduce the complexity of the interaction between the seller and buyer. Google uses data provided by the seller, sensors, and readings from the buyer’s connection to assess the seller’s ability to provide adequate ser- vice at that time of a requested purchase. Google will then sell the service to the buyer at the price set by the seller. 278 Id. 279 Id. at 29-30. 280 Id. at 30. 281 Id. at 29-30 and 45-46 (ACRP Report 127 only discusses Wi-Fi, this discussion extends more broadly to SLA in terms of Internet and cellular services.) 282 Id. at 29. • Coverage • Capacity • Currency • Equipment quality • Security • Irregular operations support • Active and periodic performance testing • Reporting to airport management • Cooperative interference mitigation • Emergency management • Revenue sharing Figure 4: ACRP Report 127 – SLA Elements