Has FCC "gone off the rails" with latest Wi-Fi blocking fines?

Hikosaemon (CC BY 2.0)

It turns out that critics of the FCC's crackdown over the past year on organizations purposefully blocking consumers' Wi-Fi hotspots might actually have a couple of kindred spirits on the Commission itself.

In the FCC's announcement this week that it plans to fine a big electrical contractor named M.C. Dean $718,000 for blocking consumers' Wi-Fi connections at the Baltimore Convention Center, it notes that Commissioners Ajit Pai and Michael O'Rielly dissented. The FCC action, however, was approved by a 3-2 vote, with the only two Republicans voting against it.

MORE: FCC still has a ton of explaining to do on Wi-Fi blocking rules | How not to get slammed by the FCC 

These are the first public statements from commissioners coming out about the FCC's actions against Wi-Fi blocking, which began with a $600,000 fine against Marriott last year and then more recently, against ISP Smart City over the summer. The FCC also issued a stern warning against illegal Wi-Fi blocking to kick off 2015. 

Echoing concerns of wireless LAN administrators and vendors we've interviewed over the past year, the dissenting Commissioners slam the FCC for failing to clarify what exactly is illegal or not. While we haven't spoken to anyone who thinks it's OK for organizations, such as those in the hospitality industry, to block users' Wi-Fi in order to force them to pay pricey fees for hotel or convention center Internet access, some do say there are legitimate security, privacy and net management reasons to block Wi-Fi access.

Though one WLAN manager recently warned: "The only thing I can think of is that the people who are 'confused' don’t understand that if THEY have the right to jam my Wi-Fi devices, then conversely, I have the right to jam THEIR Wi-Fi devices.  Does anyone really believe that open warfare is the way to proceed?"

Commissioner Pai starts off his dissent of the M.C. Dean action with this simple statement:

"Before the FCC can enforce rules, rules must exist. That’s why I believe that the FCC should adopt rules that limit Wi-Fi blocking."

Pai goes on to note that more than a year ago parties urged the FCC to come up with such formal rules, but their petition was dismissed. Some argued for no leeway on Wi-Fi blocking, whereas others claimed deauthentication is part of the IEEE 802.11 standard and can be used to safeguard networks via many WLAN products.

DISSENTING STATEMENT OF COMMISSIONER AJIT PAI Regarding FCC fine against MC Dean for Wi-Fi Blocking by bbrown8331

A key part of the debate comes down to whether the FCC should really be able to cite section 333 of the Communications Act, which states in part “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications,” when the issue at hand involves Part 15 devices that operate in unlicensed spectrum. Pai argues against using section 333 in cases like that of M.C. Dean.

In concluding his dissent, Pai indicates his indignation with the FCC's direction on Wi-Fi blocking actions:

"In the end, this decision is the latest evidence that the FCC’s enforcement process has gone off the rails. Instead of dispensing justice by applying the law to the facts, the Commission is yet again focused on issuing headline-grabbing fines. And while I have no doubt that this [Notice of Apparent Liability] will generate plenty of press, I cannot support this lawless item. Therefore, I respectfully dissent."

Commissioner O'Rielly, meanwhile, in his dissent makes clear that he's been trying -- unsuccessfully -- to convince others at the FCC to establish a rulemaking regarding Wi-Fi blocking rather than just doling out fines through a "suspect enforcement" approach. He raises questions about whether the rules in place are designed more specifically for jammers using "mechanisms that intentionally cause electromagnetic interference," rather than systems that use "deauthentification frames, which do not increase the level of energy overpowering communications signals in an area."

WLAN vendors named

One other interesting revelation from the FCC's Notice of Apparent Liability for Forfeiture regarding M.C. Dean is that two WLAN vendors used by the fined

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