On January 27, 2015, the Chief of the Enforcement Bureau of the Federal Communications Commission (“FCC” or “Commission”) issued Enforcement Advisory No. 2015-01 (“Advisory”), warning individuals and companies that the Bureau will aggressively investigate and take action against intentional interference to personal wi-fi network access points, or “hot spots”. While the Advisory applies broadly, it specifically calls out hotels and convention centers as among targets of current investigations and potential future enforcement actions to the extent that they deliberately block or disrupt the ability of consumers to use personal “hot spots” while on their premises.
The Advisory comes in the wake of last year's FCC Enforcement Bureau Consent Decree entered into by a hotel chain, under which the chain agreed to pay $600,000 in penalties related to the hotel's use of wireless technology that prevented consumers from connecting to the internet using personal wi-fi network “hot spots”. According to the Advisory, the chain employed a de-authentication protocol to disable personal wi-fi network “hot spots”, even though the latter posed no security threat to the chain’s own wi-fi network.
The Advisory makes clear that the FCC’s Enforcement Bureau intends to continue to treat any intentional blocking and disruption of such personal “hot spots” as willful or malicious interference with radio communications, in violation of Section 333 of the Communications Act. The Advisory indicates that the Enforcement Bureau considers intentional blocking of personal wi-fi access points to violate the Communications Act, regardless of whether the blocking involves the use of jamming equipment, the operation, marketing, sale or use of which is separately prohibited under federal law.
The Advisory was issued despite a still pending petition for a declaratory ruling or rulemaking. The petition asks the FCC to declare that the operator of a proprietary wi-fi network on its own property may use FCC-certified equipment to manage its network, even if use of such equipment results in interference with use of personal wi-fi access points of consumers on the operator's property. The petition argues that no FCC regulation protects consumer “hot spots” from interference. The Advisory makes clear that, despite the argument in the petition, the Enforcement Bureau will treat intentional interference (even if it results from the use of FCC authorized equipment) as a violation of the Act “unless and until the Commission determines otherwise.” Unless and until the Commission itself issues a ruling or a rule to the contrary, companies should consider the extent to which their current wi-fi networking practices may prevent, or interfere with, the use of the personal wi-fi access points of consumers on their premises.