IMLA Annual Seminar Municipal Contracts, Franchises and Technology Section Workshop ISSUES TO CONSID

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IMLA Annual SeminarMunicipal Contracts,
Franchises and Technology Section
WorkshopISSUES TO CONSIDER INDEVELOPING
MUNICIPAL WI-FI AGREEMENTS

• April 22, 2007
• Matthew C. Ames
• Miller Van Eaton, P.L.L.C.
• mames_at_millervaneaton.com

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Introduction

• Technical Background
• Business Models
• Federal Law Issues
• State Law Issues

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Technical Background

• Wi-Fi wireless fidelity
• Trademark for IEEE standard 802.11
• Originally designed for single hot spot.
• Now deployed as mesh network.
• Network typically has 3 layers mesh, capacity
  injection, back haul.
• Wi Max allows greater range, fewer facilities.

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Federal Law Issues

• FCC radio frequency interference rules 47 C.F.R.
  Part 15.
• CALEA 47 C.F.R. 20000-20007.
• OTARD 47 C.F.R. 1.4000.
• Management of rights-of-way 47 U.S.C. 253.

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FCC Interference Rules

• FCC protects licensed users.
• Wi-Fi typically uses unlicensed frequencies,
  which are unprotected.
• Contract issue parties each want other not to
  interfere with their uses, e.g., public safety.
• Not clear FCC will accept contractual resolution
  of radio frequency interference disputes.

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Communications Assistance to Law Enforcement Act

• Wi-Fi provider must comply.
• Should not be controversial.

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Over-the-Air Reception Devices Rule

• OTARD preempts local zoning rules, as well as
  lease provisions.
• Applies to Wi-Fi antennas.
• Be careful not to grant Wi-Fi provider any
  exclusive right to use City property OTARD
  preempts any restrictions on use in a lease
  agreement. See FCC decision In re Continental
  Airlines.
• Note conflict with 47 U.S.C. 332(c)(7)
  preservation of zoning authority.

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Rights-of-Way Management

• 47 U.S.C. 253 preempts state and local
  restrictions on telecom entry.
• 47 U.S.C. 253(c) preserves local authority over
  management and compensation for use of
  rights-of-way, so long as non-discriminatory.
• Wi-Fi provider may be telecom provider grant to
  Wi-Fi provider could trigger 47 U.S.C. 253.

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State Law Issues

• Local authority is key issue.
• Must distinguish between locality providing
  service itself, and agreement between locality
  and private provider.

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State Law Local Provision

• 19 states have adopted legislation addressing
  local authority in some fashion.
• Must examine carefully may apply to broadband
  or telecommunications or other service. Wi-Fi
  can be used to provide telecommunications.

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State Law Local Procurement

• Procurement statutes.
• Franchising requirements for use of local
  property.
• Restrictions on type/amount of compensation local
  government can receive.
• Authority over broader issues e.g., customer
  service.

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Conclusion

• Wi-Fi use will grow issues likely to remain.