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Miller & V an Eat 0 N ------P MILLER & V AN EAT 0 N --------P. L. L. c.-------- MATTI-lEW C. AMES 1155 CONNECTICUT AVENUE, N.W. KENNETH A. BRUNETTI* SUITE 1000 OF COUNSEL: FREDERICK E. ELLROD III WASHINGTON, D.C. 20036-4320 .JAMES R. HOBSON MARCI L. FRISCHKORN TELEPHONE (202) 785-0600 GERARD L. LEDERER WILLIAM L. LOWERY FAX (202) 785-1234 WILLIAM R. MALONE NICHOLAS P. MILLER .JOI-IN F. NOBLE MATTI-lEW K. SCHETTENHELM MILLER & VAN EATON, L.L.P. NANNETTE M. WINTERi" JOSEPH VAN EATON 400 MONTGOlvlERY STREET *Admitted to Practice in SUITE 501 t Admitted to Practice in SAN FRANCISCO, CALIFORNIA 94104-1215 California Only New Mexico Only TELEPHONE (415) 477-3650 FAX (415) 477-3652 WWW.MILLERVANEATON.COM April 20, 2006 BY ELECTRONIC FILING Ms. Marlene H. Dortch Secretary Federal Communication Commission 445 12th Street, S.W. Washington, DC 20554 Re: Notice ofwritten ex parte communication in ET Docket No. 05-247, Petition for Declaratory Ruling ofContinental Airlines Dear Ms. Dortch: Attached is a copy of a written ex parte communication in the f01111 ofa letter to Lauren Van Wazer ofthe Office ofEngineering and Technology in connection with the matter identified above. Very truly yours, By Attaclmlent cc: Fred Campbell Julius Knapp Lauren Van Wazer Alan Scrime Geraldine Matise Gary Thayer Nicholas Oros :2030\04\001 17138.DOC MILLER & V AN EATON ----------P. L. L. c.---------- MATTI-lEW C. AMES 1155 CONNECTICUT AVENUE, N.W. KENNETH A. BRUNETTI* SUITE 1000 OF COUNSEL: FREDERICK E. ELLROD III WASHINGTON, D.C. 20036-4320 JAMES R. HOBSON MARCI L. FRISCHKORN TELEPHONE (202) 785-0600 GERARD L. LEDERER WILLIAM L. LOWERY FAX (202) 785-1234 WILLIAM R. MALONE NICHOLAS P. MILLER JOI-IN F. NOBLE MATTI-lEW K. SCHETTENHELM MILLER & VAN EATON, L.L.I'. NANNETTE M. WINTERt JOSEPH VAN EA TON 400 MONTGOMERY STREET *Admitted to Praetice in SUITE 501 t Admitted to Practice in California Only SAN FRANCISCO, CALIFORNIA 94104- 12] 5 New Mexico Only TELEPHONE (415) 477-3650 FAX (4] 5) 477-3652 WWW.MILLERVANEATON.COM April 20, 2006 BY HAND DELIVERY Ms. Lauren Van Wazer Associate Chief Office ofEngineering and Technology Federal Communications Commission 445 12th Street, S.W. Washington, DC 20554 Re: Petition for Declaratory Ruling ofContinental Airlines, ET Docket No. 05-247 Dear Ms. Van Wazer: I write to provide additional information regarding the views ofthe Airports Council International- NOlih America ("ACI-NA") concerning the above-described matter. When representatives ofACI-NA met with you on March 28,2006, you requested the following additional infornlation: (1) a copy ofthe draft Wi-Fi Recommended Practice prepared by the Airport and Airline Wi-Fi Local Area Network Working Group "WLAN Working Group"); (2) infornlation regarding plmmed Wi-Fi use for operational purposes on the new Boeing "Dreamliner" and Airbus A-380 aircraft; and (3) information regarding the degree to which retail concession contracts in airpOlis provide concessionaires with exclusive lights to use airport propeliy. In addition, we wish to address in more detail several issues that we discussed at the meeting. Attached as Exhibit A is a copy ofthe draft Wi-Fi Recommended Practice. The working group participants are listed on page 2 ofthe document. Although the WLAN Working Group is sponsored by ACI-NA, the Wi-Fi Recommended Practice has not been formally adopted by ACI-NA. The Wi-Fi Recommended Practice, however, illustrates that with the proper incentives airports and airlines can agree on approaches for solving the kinds ofproblems posed by the pending Petition. Please note that this document is still subject to revision. It is also intended to apply to wi-fi use in exclusively-leased space, not in common-use or preferential-use areas (the te1111 "preferential use" means that space is used primarily by one airline tenant, but may be reassigned by the airport operator to other airlines as provided in individual leases; for example, ifthe preferential-use tenant reduces the number offlights using a particular airport gate). MILLER & VAN EATON, P.L.L.c. - 2 - Attached as Exhibit B is a PowerPoint presentation delivered by a Boeing representative at an industry conference last fall, describing, among other things, the use ofwi-fi to communicate between aircraft and airline ground crews and gate personnel. Airbus Industries is employing wi-fi for similar purposes. The following description of how the A380 aircraft will use wireless communications was provided to ACI-NA by an Airbus representative: Airbus design enables the A380 to be connected to the airline and to the outside world. The A380 communication link on the ground will be 802.11 wireless. On the A380 program, Airbus product offerings include a Gate-Aircraft Terminal Environment Link (Gatelink) capable system, which is compliant with the 802.11 big standard and a cabin wireless communication system with large capability ofsimultaneous client services. This infonnation from Boeing and Airbus illustrates that commercial entities are introducing new and varied uses ofunlicensed frequencies that will inevitably raise conflicts with other airport users. In answer to your question regarding the degree of exclusivity provided by concession contracts, we have obtained inf01111al responses from several airports. This information is by no means complete or definitive and is offered only because we had undertaken to answer your question. It appears that at least some airports assume that a typical concessionaire has the exclusive right to use at least some portion ofthe space it occupies, such as space behind a counter, at least for purposes ofday-to-day operation of a designated and limited concession. Nevertheless, as a legal matter, any such conclusion could only be drawn as to any specific case only after referring to the specific language ofthe applicable agreement and state property law. Even ifconcessionaire occupancy is exclusive as to third parties, it may be either non-exclusive as to the airport operator, or so strictly limited as to lack much ofthe character of a traditional exclusive leasehold. For instance, airports typically retain a great deal ofcontrol over the concessionaire's activities and use rights within terminal premises. An airport may retain the right to relocate a concessionaire to other space, to alter the size and dimensions ofthe occupied space, or to control a variety ofinfrastructure, design, construction or terminal use standards and requirements. Thus, for purposes ofapplying the Over-the-Air-Reception Devices ("OTARD") rule, 47 C.F.R. § 1.4000, we cannot say as a general matter whether concessionaires have the exclusive right to use their space. In addition, there are fundamental differences between the nature of a residential lease and an airpOli concession that we believe must be considered. For example, it is a relatively simple matter to identify an "exclusive use" area in the residential context, and the mere reception oftelevision programming arguably falls within the range ofuses a residential tenant can be expected to make ofsuch propeliY. Identifying exclusive use areas in the airport context may be much more difficult, and using a space granted for the sole purpose ofoperating a specific airpOli concession for the additional purpose oftransmission ofcommunications signals - especially ifsuch transmission is for the purpose of generating revenue - is not only typically expressly forbidden by a concession contract, but not within the scope ofthe rights a concessionaire would normally expect to have. MILLER & VAN EATON, P.L.L.c. During our March 28 meeting we also discussed the question ofwhat distinguishes an airp01i from other multi-tenant environments. There are a number of factors, but the most imp01iant is the most obvious: airports are critical to our system of air commerce and exist only to serve that function. By definition this makes them unique; the airport environment is readily distinguishable from any other type ofmulti-tenant environment. Unlike other multi-tenant facilities, built and operated primarily to provide tenant leaseholds, airports provide space for specified uses in service of a distinct public function. Airport managers are charged with the responsibility of ensuring the safe and efficient operation of a public transportation facility for the good ofthe public, and to do so they must have the ability to control the use oftheir physical infrastructure, without exception. The installation and operation ofcommunications equipment by airp01i tenants and concessionaires often poses no threat to this fundamental requirement, and airport managers routinely try very hard to accommodate the desires of airport users. When difficulties arise, however, airp01i management must have the final say. Granting various types of airport users the legal right to use certain types of equipment notwithstanding local conditions and the requirements ofefficient and effective management would be bad public policy. The OTARD rule and the Commission's policies regarding use ofunlicensed spectrum may be useful instruments in other contexts, but they are clearly unsuited to the airport environment, at least in their present f0l111S. The truth is that neither policy was developed with the current situation in mind, and rigid application ofpolicies ill-suited to this distinctive context would have unfortunate consequences that ACI-NA believes would be contrary to the public interest. In the absence of a finer-tuned alternative, Massport's request that the central antenna exception apply in this case is reasonable and
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