Before the
UNITED STATES DEPARTMENT OF
COMMERCE
National Telecommunications and Information
Administration
Washington, D.C. 20230
In the Matter of Request for Comments on Deployment of Broadband Networks and Advanced Telecommunications
|
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Docket No. 011109273-1273-01 RIN 0660-XX13 |
COMMENTS
OF
THE AIRPORTS COUNCIL
INTERNATIONAL - NORTH AMERICA
Of Counsel:
Matthew C. Ames
Patricia A. Hahn Nicholas P. Miller
General Counsel Miller & Van Eaton, P.L.L.C.
and Senior Vice President Suite 1000
Airports Council International - 1155 Connecticut Avenue, N.W.
North America Washington, D.C. 20036
Suite 500 (202) 785-0600
1775 K Street N.W.
Washington,
DC 20006
Attorneys for the Airports Council International - North
America
January 18, 2002
Table of
Contents
Page
INTRODUCTION. 1
I. AIRPORTS HAVE UNIQUE SAFETY AND OPERATIONAL
CONCERNS REGARDING WIRELESS COMMUNICATIONS
SERVICES. 3
II.
THE COMMUNICATIONS ACT PRESERVES
LOCAL AUTHORITY
OVER RIGHT-OF-WAY MANAGEMENT AND ANTENNA SITING..... 6
III. AIRPORTS HAVE STRONG INCENTIVES TO ENSURE AIRPORT
USERS HAVE ACCESS TO THE TELECOMMUNICATIONS
SERVICES THEY
NEED........ 8
IV. ACCESS TO AIRPORTS IS PERVASIVELY REGULATED BY
THE FAA AND LOCAL, STATE AND REGIONAL GOVERNMENTS 9
CONCLUSION.. 11
The Airports Council International - North America (“ACI-NA”) submits these Comments in response to the Request for Comments on Deployment of Broadband Networks and Advanced Telecommunications issued by the National Telecommunications and Information Administration (the "NTIA"). ACI-NA represents the local, regional and state governing bodies that own and operate the principal airports served by scheduled air carriers in the United States. The U.S. airport members of ACI-NA enplane more than 98 percent of the total domestic, and virtually all international, scheduled airline passenger and cargo traffic in the United States. All of ACI-NA’s member airports are owned, and almost all are operated by state and local governments that lease space in airports to airlines and various commercial retail establishments and manage access to airport property.
Access to advanced telecommunications services is a critical element in the success of almost every sector of our economy, and the air transportation industry is no exception. ACI-NA supports rapid deployment of broadband networks and advanced telecommunications, because airports seek to meet the needs of travelers, airlines, and the thousands of support service providers, concessionaires, and other businesses that use airport facilities every day.
Nevertheless, airports are unusual entities, and have an unusual set of responsibilities. In the Public Notice, NTIA specifically asks for comment on local government issues affecting broadband deployment. Airports are quasi-governmental entities, with many of the characteristics and responsibilities of both state or local government agencies and owners of commercial real estate, and yet their first priority must always be the safety of the traveling public. Public safety concerns have become even more prominent since September, 2001. Airports need to be able to administer facilities that provide broadband access, in a manner similar to that already employed by airports in balancing the sometimes-competing interests of airport tenants, concessionaires and others. Airports also must ensure that they meet regulatory requirements imposed by other agencies, in particular the Federal Aviation Administration (“FAA”).
We understand
that entities unfamiliar with the aviation industry may not be aware of the many
specific issues that affect airports, or of the unique characteristics of
airports. For that reason, we urge
NTIA to consider all the potential ramifications of its recommendations. For example, the Cellular Telecommunications Industry Association
(“CTIA”) has submitted comments in this proceeding claiming that airports are
slowing the growth of the wireless industry:
There is an increasing trend by airport officials
to recover revenues lost from pay phone providers by imposing onerous appraisal
methodologies that result in significant rate increases on wireless service
providers and foster arbitrary and discriminatory treatment among wireless
telecommunications services with respect to the provision of wireless services
within and around the perimeter of airports. [Footnote omitted.] This trend is
occurring in several major airports that provide facilities for many Federal
agencies, e.g., Federal Aviation
Administration, Drug Enforcement Agency, FBI, U.S. Customs, etc. Such methodologies are having a
dilatory impact on the deployment of advanced wireless services at these
airports.
Comments of CTIA at 11.
This characterization is simplistic
and inaccurate, and it would be unfortunate if such statements were to form the
basis for federal policy.
In these comments, ACI-NA hopes to give NTIA a more complete understanding of the unique concerns of airports.
Federal policy must protect the ability of
airports to manage the placement of telecommunications facilities on airport
property for a number of reasons, including: (1) Airports’ overriding interest
in protecting the safety of passengers and others at airports; (2) the fact
that competing uses of wireless spectrum by commercial entities within the
airport space can interfere with radio frequencies airports use for aviation
operations and public safety purposes, thereby jeopardizing airport operations
and the safety of airport users; (3) airports’ strong incentives to ensure that
airport tenants and users have access to the telecommunications services
they need; (4) preservation of state and local
authority over antenna siting; and (5)
pervasive regulation of airports by both the FAA and the local, state and
regional jurisdictions that airports serve, which renders additional federal
regulation unnecessary and burdensome.
Accordingly, airports must be permitted to manage the access of
telecommunications service providers to airport property and should be exempt
from any new limitations NTIA may ultimately recommend.
Airport authorities must manage their facilities
in a way that serves the needs of safe and efficient air travel, and this
requires flexibility to administer the airport successfully and to balance many
competing concerns. Restricting
local flexibility regarding the placement of telecommunications facilities will
threaten the public safety, as well as the ability of airport operators to
efficiently manage their facilities, consistent with FAA requirements and local
government regulations.
Based upon serious radio frequency interference issues outlined below,
airports must be allowed to maintain control over access to their premises by
providers of telecommunications services so that their central policies
regarding radio frequency interference issues may be enforced.[1] Policies that would require airports to
grant nondiscriminatory access to telecommunications providers, or that would
restrict the ability of airports to manage entrance to and activities on airport
property, would raise significant security concerns, not to mention
administrative difficulties. The safety of airport users and the efficient
operation of aviation services is the primary focus of airports. Their roles as
landlords must be secondary to these safety concerns, especially where the
demands of their tenants may jeopardize the safe and secure functioning of the
airport.
Airports lease space to both airlines and various commercial retail
establishments. Most, if not all of
these lessees, as well as other entities seeking permission to use airport
space, request use of radio spectrum for various commercial airport projects.
For example, with respect to unlicensed 2.4 GHz spectrum, airports have been
deluged with proposals for various services to be provided using this spectrum.
The services include wireless Internet service for airport users; wireless links
for airlines to allow communications between the airplanes and gates regarding
mechanical repairs, catering orders and notices to airmen; wireless credit card
authorizations for vendors operating at portable kiosks in the airport; wireless
connections linking retail stores in
the airport with personal digital assistants of airport users; wireless
systems for routing of baggage; and wireless ticket-printing machines. ACI-NA
anticipates that airports will face increasing demands from wireless services
providers as innovative applications for wireless technology further develop.
Several of these services require the installation of antennas and other types
of communications equipment on airport premises.
These burgeoning services raise interference issues not only with respect
to the competing commercial wireless services of other providers but, more
importantly, with the operations and safety systems of the airport itself.
Airports and their airline tenants use
frequencies in the 2.4 GHz band for numerous
computer-system functions, such as communications via wireless devices to record
aircraft fueling needs and tasks and to monitor noise from aircraft as required
by FAA regulations. Commercial use of 2.4 GHz frequencies can interfere directly
with such airport functions.[2] Moreover, airlines also plan to use this
unlicensed spectrum for critical systems, with which other commercial uses may
interfere, resulting in increased flight delays if use of spectrum is not
managed properly. In addition, airports use channels in the Public Safety
frequencies in the 800-900 band and in Aviation Services frequencies: (1) to
coordinate aircraft with aviation service organizations located on the ground;
(2) to communicate information about aircraft transit, types of fuel and ground
services; and (3) to coordinate police, fire and emergency services and airfield
maintenance and operations.[3] Commercial providers of
telecommunications services also occupy frequencies in the 800-900 band, and
their use of such frequencies has interfered with airport use of frequencies. In
lower frequencies used for public safety purposes, such as the 155 MHz and 450
MHz bands, the interference between business uses and public safety uses has
been a longstanding problem.
FAA regulations place numerous safety responsibilities
upon airport operators, including terminal, perimeter and airfield security,
hazardous materials response, and firefighting. Even though air-to-ground
communications may not be affected, for example, by competing wireless
operations, secondary and tertiary communications with safety personnel such as
ground support personnel, firefighters, hazardous material handlers, etc., could
be adversely affected.
For example, FAA regulations explicitly require ground support at
airports to operate on two-way radio with air traffic control.[4] If ground personnel are unable to
communicate due to interference, aircraft fueling and servicing could be
severely impaired and emergency medical and firefighting equipment could be
delayed, leading to potential safety hazards on the runways, and inevitably to
costly flight delays. By way of a
less extreme example, if ground personnel are not informed about the arrival of
an aircraft, the passengers and crew of the aircraft may be stranded on the
runway, without ground support, waiting to proceed to a gate. The resulting delay would, at a minimum,
inconvenience passengers and likely spawn additional delays for subsequent
airline operations. If a medical
emergency were to occur to a passenger on the stranded aircraft, the results
could be much more disastrous. When
such scenarios are considered in combination with the several hundreds of
aircraft landings per hour at some of the nation’s busiest airports, the
potential adverse effect of a few minutes delay or interference problems with
radio communications becomes clear.
These circumstances distinguish airports from other participants in this
proceeding. The crucial difference is that airports must coordinate access to
the premises and the use of radio frequencies to maintain not only the smooth
operation of flights and airport operations, but also to ensure the safety of
the public and airport personnel.[5]
Federal law contains no prohibition on an airport obtaining a fair market
rate for the lease of its property to a telecommunications provider. To the contrary, applicable law as well
as FAA regulations require that all airports that receive federal grants provide
assurances that the airport will be operated in a manner that is as
self-sustaining as possible under the circumstances of that airport. See 49 U.S.C. § 47107. Virtually all commercial service
airports in the United States have received federal airport grants and are thus
subject to the “self-sustaining” requirement. The FAA’s Policy and Procedures
Concerning the Use of Airport Revenue,[6]
interprets the “self sustaining” requirement to require airports to charge
non-aeronautical users of airport facilities fair market value in exchange for
the use of airport facilities. Several specific exceptions to this rule
are noted in the policy statement, but none of the exceptions apply to broadband
services.
There is an extensive market across the country
for antenna sites, in which owners of private property as well as government
entities freely compete. Airports
are no different, and there is absolutely no basis for imposing federal rent
control of antenna sites, as CTIA seems to assert.[7] In fact, such a policy would amount to a
subsidy for wireless telecommunications providers, since they would be able to
obtain the use of property at below-market rates, and any mandate that such
rates be the standard would run directly afoul of the FAA Policy noted
above. Indeed, federal law
expressly preserves local authority over the use of local property by
telecommunications providers.
Federal law also preserves local authority over the placement of wireless
facilities.
Airport property is far less likely than other installations to contain
facilities that would be considered public rights-of-way. Although airports
include roadways on their airport layout plans, these plans cannot be modified
without the FAA’s approval.[8] The quasi-governmental nature of airports,
combined with extensive regulation by the FAA, therefore means that roadways and
other airport facilities are not traditional public rights-of-way.
Furthermore, to the extent an airport facility
might be deemed a public right-of-way, the airport’s authority is preserved by
Section 253 of the Communications Act, 47 U.S.C. § 253(c). Similarly, Section 332(e)(7) of the Act.
47 U.S.C. § 332(c)(7) preserves local authority over the placement of
antennas and other wireless facilities.
NTIA should do nothing to interfere with these existing
policies.
Airports strive very hard
to be convenient, comfortable, and efficient places for travelers. That is ultimately their sole
purpose. Airports host a whole
array of users who exist solely to provide services to airlines or to
travelers. All of those users rely
heavily on telecommunications services of all kinds: high capacity links between airline
check-in counters and off-site reservations offices; two-way radio services
between aircraft and fuel and catering companies; two-way radio services between
airline ground personnel, aircraft and gate agents; satellite uplinks for
teleconferencing in airport meeting rooms; satellite data services between
retailers and their corporate headquarters; video programming in sports bars;
high speed connections for Internet kiosks; plain old telephone service for
everybody; and many more. And of
course, individual travelers expect their needs to be
met.
Travelers will avoid overcrowded,
out-of-date facilities if they have options, and they often do. Even if they do not, airport authorities
are ultimately answerable to elected officials, who respond to complaints from
individual travelers, as well as businesses that rely on the airport. Equally important is the fact that
elected officials and airport management consider airports to be symbols of
their community: they want visitors
to develop good impressions, so they will spread the word to others and come
back themselves. They also consider
airports to be central to local economic development plans and, as a result,
will invest in those services that appeal to travelers. As a result, there is great pressure on
airports to provide all of the features
that travelers need, and this includes the latest telecommunications
services. Business travelers, in
particular, want reliable cellular service while they are inside airports, and
they want access to the Internet while they are waiting for their next
flight. Airports are now involved
in the planning and provision of facilities to make sure such services are
available, and will continue to be available. Consequently, no regulatory incentives
are needed to encourage deployment of broadband services in
airports.
The FAA has imposed on airports pervasive regulations covering every
aspect of airport operations. The
FAA’s regulations regarding such issues as safety, noise, the use of federal
grant monies and contracting requirements all affect the ability of airlines to
obtain access to airports and conduct operations on airport
property.
Requiring airports to allow unrestricted or general access to their
property directly contravenes the specific FAA regulations that restrict access
to airport property in the interest of protecting the public. Federal aviation regulations require
that airports have access control programs for security reasons, to maximize
protection of the airport against intentional risk or damage.[9] In addition, the FAA requires access
control to large areas of airports in order to protect the public against
interference, inadvertent or otherwise, with aircraft.[10] Issues of access control are such a high
priority for the FAA that it has published an advisory circular that requires
secure access to be factored into the planning and designing of an airport
constructed with federal monies.[11] Thus, airports must remain free to
establish and enforce requirements governing the time, place, and manner of
access to secure areas by any person.
Moreover, a federal rule restricting the ability of airports to control
access by telecommunications providers, whether regarding their facilities or
their personnel, would effectively duplicate existing requirements. Airports
receiving federal assistance for airport improvements are subject to a variety
of federal grant assurances, including the requirement that the airport be
available for public use on reasonable conditions and without unjust
discrimination.[12] The regulations regarding federal aid to
airports include a myriad of rules pertaining to contracting and procurement
procedures and labor requirements.[13] These regulations are all designed to
create a fair and nondiscriminatory procurement system for the construction and
continued maintenance and service of airports receiving federal
aid.
In addition, airports are subject to the regulations of the jurisdictions
that they serve. Virtually all
public airports are owned and operated by local, state and/or regional airport
authorities, which are quasi-governmental entities composed of the state and
local governments of communities served by the airport, as well as private
entities and community organizations.
Regardless of the composition of a particular airport authority, these
authorities are public entities that must comply with the laws and regulations
of their jurisdiction. Such laws and
regulations govern the relationship between airports and their
non-aeronautical tenants and include rules on contracting requirements,
competitive bidding requirements and minority and disadvantaged business
participation requirements. In some instances, access to an airport by
telecommunications service providers (as well as other commercial entities) is
regulated as part of the airport’s competitive procurement process. Thus, nondiscriminatory access is
already addressed in some form in existing regulations.
As government or quasi-governmental entities, airport owners and
operators have a strong interest in ensuring that the public has the broadest
possible access to these facilities.
Their incentive to provide broad access, however, must be bounded by
consideration of the unique safety and operational concerns of airports. Because
of the serious interference issues presented above, airports must be permitted
to manage the access of telecommunications service providers to airport
property.
The FAA and local, state and regional governments have already imposed
pervasive regulations over the relationship of airports to their aeronautical
and non-aeronautical tenants. Additional regulations designed to benefit the
telecommunications industry would serve only to add yet another layer of
regulation over the complex regulatory environment that currently exists for
airports.
ACI-NA believes that no special measures are necessary to promote the deployment of broadband services. Market demand for such services will justify investment in the industry and further growth will follow. Other sectors of the economy, including the aviation industry and state and local governments, recognize the value of broadband deployment. Airports have no interest in impeding broadband deployment, and, in fact, have every interest in encouraging its continued growth. At the same time, NTIA must recognize that there are many other policy concerns that must be accommodated. Airports have a special role in our economy and a special responsibility for public safety that could be hindered by unnecessary federal regulation. Accordingly, we urge NTIA to respect that role and take no action that might interfere with that responsibility.
Respectfully submitted,
Of Counsel:
_________________________________
Patricia A. Hahn Matthew C. Ames
General Counsel Nicholas P. Miller
and Senior Vice President MILLER & VAN EATON, P.L.L.C.
Airports Council International Suite 1000
North America 1155 Connecticut Avenue, N.W.
1775 K Street NW Washington, D.C. 20036-4306
Suite 500 Telephone: (202) 785-0600
Washington, DC 20006 Fax: (202) 785-1234
Attorneys for the Airports Council
International - North America
January 18, 2002
2030\01\WAH01669.DOC
[1] Such policies have been developed in part because the FAA as well as local, state and regional governing bodies have imposed pervasive regulations on airports regarding access.
[2] With respect to unlicensed spectrum, some airports have wireless communications policies that require commercial entities to file applications regarding their proposed use of spectrum at the airport. Some airports also retain consulting firms to test and analyze potential radio frequency interference with airport operations and safety systems. If the proposed service of an FCC-licensed carrier will cause interference with airport operations and safety systems, some airports negotiate the use of nearby frequencies with such carriers to alleviate interference problems.
[3] 14 C.F.R. §139.319; FAA Advisory Circular 150/5210-7C (1999).
[4] 14 C.F.R. §139.329.
[5] Moreover, available physical space on airport premises to accommodate new antennas and other equipment is extremely limited and further regulation of access to airports will exacerbate existing space problems.
[6] 64 Fed. Reg. 7696, 7710-7714 (Feb. 16, 1999), attached as Exhibit A.
[7] In addition, to the extent that CTIA seems to be implying that its members are entitled to special treatment because they provide services to various law enforcement agencies, we would note that airports have suffered substantial lost revenue in recent months, while their expenses for such items as improved security have increased.
[8] See e.g., Airport Layout Plans, Federal Aviation Administration, Dec. 11, 2001, attached as Exhibit B; FAA Advisory Circular 150/5100-38A, ch. 5 (1989).
[9] 14 C.F.R. §107.14.
[10] 14 C.F.R. §139.333, 139.341.
[11] FAA Advisory Circular 150/5360-13 (1988).
[12] 49 U.S.C. § 47107(a).
[13] See generally, 14 C.F.R. Part 151.