Undertaking its third major enforcement action against Wi-Fi blocking, the FCC notified M.C. Dean, Inc. of its liability for forfeiture, in the amount of $718,000, for preventing visitors and exhibitors at the Baltimore Convention Center from connecting to the Internet through personal Wi-Fi hotspots. However, while voicing support for the FCC’s goal of promoting unobstructed access to Wi-Fi and other web-connected networks, both Republicans on the five member panel—FCC Commissioners Ajit Pai and Michael O’Rielly—objected to the proposed fine on grounds that the law cited by the FCC does not apply to unlicensed Wi-Fi devices.
Unlike similar decrees issued by the FCC’s Enforcement Bureau over the past y ear, Monday’s Notice of Apparent Liability for Forfeiture (NALF) was adopted by a 3-2 vote by the agency’s commissioners. Addressing complaints that M.C. Dean deliberately blocked the personal Wi-Fi connections of convention participants who refused to pay M.C. Dean as much as $1,095 per event for Internet access, the NALF contends that M.C. Dean’s use of de-authentication technology to block third-party Wi-Fi access violated Section 333 of the 1934 Communications Act, which prohibits actions that interfere with radio communications. The NALF further states that the blocking activities in question took place over 26 days during ten different events and that such blocking extended beyond the convention center to impact Wi-Fi usage in passing vehicles.
Although Public Knowledge applauded the NALF as “a big victory for all users of Wi-Fi,” M.C. Dean protested the NALF as “legally and factually flawed,” arguing that Section 333 “does not apply to the circumstances of this case and has never been interpreted by the FCC to cover such activities.” Explaining that the equipment it used to block personal Wi-Fi access had been “expressly authorized” by the FCC and was operated in a manner that is “consistent with the FCC’s rules,” M.C. Dean lamented that the agency “refuses to provide any guidance about when and under what circumstances the use of such equipment will be deemed to violate the law.” In dissenting statements, Pai and O’Rielly agreed with these arguments, specifying that Section 333 prohibits interference to licensed radio communications and not to unlicensed WiFi devices and operations that are governed by Part 15 of the FCC’s rules and must accept interference from other devices. As Pai quipped that “before the FCC can enforce rules, rules must exist,” O’Rielly proclaimed: “the simple . . . solution to this controversy is either to seek Congressional clarification or conduct a broad rulemaking on the potential reach of Section 333 to Part 15 devices.”