Yesterday the FCC ruled that the Massachusetts Airport Authority cannot prevent Continental from putting up a Wi-Fi antenna in its Logan Airport lounge. Some folks, such as Julie Ask of Jupiter, have see this ruling as validating the “no one owns it” character of unlicensed spectrum. As I’ve argued before, unlicensed spectrum works in part because it is used consistent with physical property rights. This is why Ask goes on to say that she “dread[s] the day that a Muni network is overlayed or my neighbors set up 802.11n.” This particular case is actually about property and competition.
It’s an analog to a case where an apartment building’s landlord (who gets a cut from the cable company) puts in his leases a clause prohibiting satellite dishes. There’s no point to that clause except to stifle competition, and that’s why Congress told the FCC to promulgate the OTARD rules under which the Logan case was decided. One interesting question is whether such a rule is even necessary in a competitive environment. If you have a competitive market for apartments, then presumably you’ll get the right mix of restricted and non-restricted leases. Another interesting question is whether Logan Airport is subject to sufficient competition to justify such a rule.*
One thing I do know is that this ruling will spur competition. Glenn Fleishmann writes,
This ruling may have little effect in airports outside of Boston-Logan, because I am unaware of any other situation in which the airport authority set up an adversarial approach to the extend of spending what must have been hundreds of thousands of dollars pursuing action on the public’s dime against privately owner airlines, which are also the airport authority’s tenants. In the airports I know something about, the development of a comprehensive Wi-Fi system was undertaken with the involvement of airlines and other tenants to provide the right services in the right places. In some airports, different entities, including airlines, run their own distinct systems without any conflict that’s been documented.
I think it will have an effect. Take T-Mobile, which files in favor of Continental in this case. It has a partnership with Starbucks to put hotspot service in its stores. Just about every airport has a Starbucks. Even if other airports are not as hostile as Logan, T-Mobile/Starbucks now doesn’t have to find out by testing the waters at each one. It can go ahead and deploy Wi-Fi at every airport without asking for permission and without fear of litigation (well, little fear). Hopefully this will mean lower prices across across the board. What about free ad-supported wi-fi from Google? All it has to do now is find a tenant partner at airports.
*I know some are going to say that without the rule Massport would have a “monopoly” over internet access at Logan. But that’s like saying that the owner of a movie theater has a monopoly over the popcorn concession and that’s why they charge high prices. However, when you buy a ticket to a movie, you’re buying a bundle of services, including the option to buy popcorn at a certain price. Movie theaters are competitive and compete on concession prices as much as anything else. If we had “open access” rules for popcorn at movie theaters, you’d see ticket prices go up. The question is whether Logan faces competition from other airports. I don’t know.↩