introduction

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.

I. AIRPORTS HAVE UNIQUE SAFETY AND OPERATIONAL CONCERNS REGARDING WIRELESS COMMUNICATIONS SERVICES.

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]

II. THE COMMUNICATIONS ACT PRESERVES LOCAL AUTHORITY OVER RIGHT-OF-WAY MANAGEMENT AND ANTENNA SITING.

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.

III. AIRPORTS HAVE STRONG INCENTIVES TO ENSURE AIRPORT USERS HAVE ACCESS TO THE TELECOMMUNICATIONS SERVICES THEY NEED.

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.

IV. ACCESS TO AIRPORTS IS PERVASIVELY REGULATED BY THE FAA AND LOCAL, STATE AND REGIONAL GOVERNMENTS

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.

CONCLUSION

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).

[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).

[11] FAA Advisory Circular 150/5360-13 (1988).