Marriott Checks Out of Declaratory Ruling/Rulemaking Proceeding

Prudent network management or Wi-Fi jamming? The question has been taken off the table " for now.

Last year we reported on a couple of interactions between the FCC and the well-known hotelier, the Marriott Corporation. The news started inauspiciously for Marriott when the Commission wrapped up an investigation (started in 2013) by spanking Marriott with a $600,000 civil penalty. The FCC determined that Marriott had used "containment capability" to prevent guests at the Gaylord Opryland (run by Marriott) from by-passing the hotel's Wi-Fi system in favor of their own DIY hotspots.

Presumably prodded by that investigation, Marriott (joined by some hotel friends) filed a request for declaratory ruling (or, in the alternative, for rulemaking), essentially asking for a determination that what Marriott had done really was OK. (Specifically, Marriott was asking the Commission to hold that a network operator may "mitigate" threats to the operator's network, even when doing so results in interference to guests' WiFi hotspots.)

The FCC dutifully announced the filing of the request for declaratory ruling and invited comments about it. But a month later, it also issued an "Enforcement Advisory" alerting one and all to the fact that preventing one's Wi-Fi enabled devices from connecting to the Internet constitutes prohibited "jamming". And a month later, out came another "Enforcement Advisory". This one was even more pointed. Referring to "a disturbing trend in which hotels and other commercial establishments block wireless consumers from using their own personal Wi-Fi hotspots on the commercial establishment's premises", the advisory declared flatly that "Wi-Fi blocking violates Section 333 of the Communications Act, as amended."

Not surprisingly, Marriott (and the other requesters) have now withdrawn their request for declaratory ruling (and the FCC has lost no time in officially bidding it adieu).

In their withdrawal letter, Marriott et al. strongly deny the Commission's claim that hotels intentionally messed with private Wi-Fi hotspots in order to force consumers to use the hotels' pricier Wi-Fi network. And they also note that no less an authority than the Department of Homeland Security, in conjunction with other federal agencies, had issued a technical reference in which it (a) "require[d] that internal WLANs operated by federal agencies use wireless intrusion detection and prevention systems" and (b) recommended the use of such systems by authorized visitor WLANs." In other words, in Marriott's view it was merely implementing cautious guidance from DHS, not illegally jamming anything.

Still, the handwriting on the Portals walls was pretty darn clear, particularly in the most recent "Enforcement Advisory". So rather than expect that the FCC might be persuaded otherwise, it makes sense that Marriott would look for other ways to make its case. Officially, Marriott pulled the plug "in order to more quickly and comprehensively address some of the pressing security questions raised by Petitioners and to focus efforts on establishing the American Hotel & Lodging Association Cybersecurity Task Force." Marriott describes the Task Force as "an industry task force that will partner with experts and leaders in the technology sector to find and implement the most effective market-based solutions available to tackle growing cyber threats."

While the withdrawal of the Marriott request defers resolution of the issues raised in that request, our hunch is that those issues haven't gone away by any means. The withdrawal of the request may just be a tactical retreat; it's probably not the end of the war.