In 2015, the Federal Communications Commission (FCC) penalized numerous private companies that have allegedly blocked Wi-Fi hotspots. The problem is, FCC hasn’t bothered to promulgate any regulations that detail when such blocking is unlawful. Instead, the Commission bases its claim of authority on a 1990 statute meant to protect radio stations from malicious interference. FCC’s wielding the heavy hand of enforcement actions for Wi-Fi blocking is troubling in principle and unlawful in practice.
With no rule on point, the Commission has failed to provide businesses with fair notice. Further, FCC’s attempt to stretch the applicability of an off-point regulation could have widespread consequences if followed to its logical conclusion. As a result, the time for FCC to issue rules on Wi-Fi blocking through notice-and-comment rulemaking is now well overdue.
Over a year ago, the American Hotel & Lodging Association petitioned FCC to initiate a rulemaking in order to clarify exactly what types of interference the Commission interprets the law to prohibit. Over the months that followed, comments poured in expressing a variety of viewpoints and differing interpretations. Despite this, Commissioner Rosenworcel publicly urged her colleagues to “dismiss th[e] petition without delay.” A majority of the Commissioners obliged and did just that, obviating their duty to announce clear rules while still threatening more enforcement actions.
FCC has now levied over $2.09 million in fines against two hotel chains and two companies that provide Wi-Fi at convention centers. The two most recent targets were M.C. Dean and Hilton Worldwide, which faced fines of $718,000 and $25,000, respectively. At this point, every company against whom FCC has brought an enforcement action settled with the agency except for M.C. Dean. Hopefully, M.C. Dean’s refusal to bend to FCC’s enforcement whims will help instigate the necessary rulemaking.
Punishing Wi-Fi blocking under a statute designed to prevent the jamming of radio stations is problematic for a number of reasons. As the Commissioners who dissented from these enforcement actions pointed out, the Commission’s legal position is refuted by the text of the rule it seeks to apply, the governing statute from which that rule derived, and the language of the past Bureau-level Enforcement Advisories to which it now points as prior notice. Further, even if those advisories did apply to unlicensed devices like the Wi-Fi [blockers] at issue, which they do not, “[e]nforcement advisories and consent decrees do not serve as Commission precedent.” Hence, as things stand, these businesses are left without adequate notice or guidance.
If one follows the agency’s position to its logical conclusion, as FCC Commissioner Ajit Pai did, it appears no one is safe from enforcement actions:
When someone at a coffee shop uses Wi-Fi to surf the Internet or someone else relies on a Bluetooth connection to play music over a wireless speaker, they may very well be interrupting or causing harmful interference to another unlicensed device. Does anyone seriously believe that these routine uses of unlicensed technology violate section 333? I would hope not. Yet that is exactly the result that the [Notice of Apparent Liability’s] reading of section 333 compels. The provision prohibits any person from “willfully” interfering with covered communications. And recall that both the Communications Act and the FCC define “willful” as the conscious decision to act, irrespective of a person’s motivation or intent to violate the law.
However unlikely it is that FCC would bring enforcement actions against private individuals for using their Wi-Fi devices, Commissioner Pai’s point illustrates the potential reach of FCC’s current policy, which in turn creates significant uncertainty among businesses about what they can and cannot do. In a recent statement, FCC’s Enforcement Bureau Chief labeled Wi-Fi blocking “patently unlawful,” but strongly-worded press releases do not create law and do not constitute fair notice. Uncoupled from a rule that clearly sets forth a prohibition on Wi-Fi blocking and boundaries on FCC’s authority, FCC’s enforcement actions remain patently unlawful.
In a likely sign of what’s to come, FCC signaled its plans to continue creating law via enforcement action—announcing the hiring of Jonathan Mayer, a rising star in the data-security world, to work in the Commission’s Enforcement Bureau. Perhaps if the agency were to instead focus its energy on setting clear rules for businesses to follow, it would not need to ramp up its enforcement.