The Open Technology Institute at the New America Foundation joined Public Knowledge in submitting opposition comments to the Federal Communications Commission (FCC) on the Petition of American Hotel & Lodging Association, Marriott International, Inc. and Ryman Hospitality Properties for a Declaratory Ruling to Interpret 47 U.S.C.§ 333, or, in the Alternative, for Rulemaking. Full text of comments are available in the attached PDF
In this Petition, Marriott and its hotel industry allies assert that Wi-Fi and other radio communications using license-exempt spectrum bands are not “licensed or authorized” within the meaning of 47 U.S.C. § 333 and therefore have no protection from willful or malicious interference by property owners or, apparently, by anyone for any reason. As consumer advocates and longtime proponents of the enormous social and economic value of Wi-Fi and unlicensed innovation more generally, OTI and PK are alarmed that Marriott’s Petition might even be considered to raise an unresolved question. Both the Communications Act and the Commission’s enforcement advisories are clear that it is unlawful to willfully impair or disable any authorized communications by radio, regardless whether the device is operating on “licensed” or “unlicensed” spectrum. OTI and PK urge the Commission to clarify this point in its Order dismissing the Petition.
The essence of Petitioners’ argument is that the Commission has no authority under Section 333 to prohibit “willful or malicious” interference with Wi-Fi or other authorized communications on license-exempt bands. However, both the plain language of Section 333 and its legislative history belie Petitioners’ claim. The statutory language could hardly be more clear: “No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government.” This “licensed or authorized” language must be interpreted to include any lawful radio communications authorized by the Commission. Accordingly, FCC enforcement advisories have made it abundantly clear that that the agency has a longstanding policy that willful interference to any authorized radio service, including Wi-Fi operations, violates federal law.
Contrary to Petitioner’s claims, it is irrelevant whether Part 15 devices must “accept” interference. Section 333 does not prohibit interference; it prohibits actions that “willfully or maliciously interfere or cause interference” with radio communications. The operative words are “willfully and maliciously.” A literal reading of Section 333, protecting “any radio communications,” licensed or unlicensed, from willful interference is entirely consistent with Part 15. At the time Congress enacted Section 333, in 1990, the Commission’s expanding authorizations of license-exempt operations in the Industrial Scientific and Medical (ISM) bands, and in other bands, were widespread, well-known and widely-supported. As a matter of policy, Petitioner’s proposed “right to interfere” with Wi-Fi or other Part 15 operations undermines the public interest in multiple ways. First, Petitioner’s proposed declaratory order is virtually boundless. It would open the door to the willful blocking or degrading of Wi-Fi by any venue that decided it could make a profit off its exclusive provision, or benefit in some other way by ensuring quality of service (QoS) for its own network.
Second, because Wi-Fi has become so ubiquitous and economically valuable, the Commission must guard against the inclination of certain parties to seek competitive advantage – and profit – by achieving QoS for their Wi-Fi service while simultaneously disabling competing options and rival Wi-Fi services. It is obvious that what Marriott is after is a means to coerce guests and visitors to pay them for a service (Wi-Fi connectivity) that a rapidly increasing share of consumers already pay for through their mobile carrier (e.g., via tethering apps or a portable router), and/or cable Internet subscription (e.g., Xfinity Wi-Fi), or even through a hotspot aggregation service (e.g., Boingo). It would be both anti-competitive and immensely disruptive if the Commission accedes to Petitioners’ proposal and gives every major venue the ability to block rival sources of Wi-Fi. Consumers will pay unnecessary fees. Seamless connectivity will be constrained. And both mobile and wireline ISPs are likely to receive a flood of complaints from subscribers who will assume their Wi-Fi applications are malfunctioning.
Finally, the Commission should acknowledge the critical distinction between inadvertent interference and the sort of knowing and economically-motivated interference that Petitioners seek to legitimate with this Petition. At a time when Wi-Fi is offloading a majority of the exploding demand for mobile data, spurring innovation, encouraging mobile market competition, empowering consumers and generating $200 billion or more per year for the American economy, the nation cannot afford to undermine this proven and immensely popular technology simply because a particular set of companies decides they can extract rents by not only using unlicensed spectrum for their own Wi-Fi networks, but to do so with technology and in a manner calibrated to block, impair or degrade the general public’s shared use of Wi-Fi and unlicensed spectrum.
