Plans are afoot in Philadelphia and Huntsville, Alabama, as well as my hometown of San Francisco, to provide residents with low-cost or free wireless internet access.
It’s a great idea whose time has come, like drinking fountains, public toilets and park benches. But last week, the San Francisco Chronicle reported that my city’s mayor expects a legal challenge from internet service providers like SBC and Comcast, who presumably prefer every San Franciscan to pay a monthly access fee.
Obviously, ISPs fear competition from a free service. But people pay for bottled water, music downloads, open-source operating systems and printed versions of free blogs. Companies can still make money in cities with public Wi-Fi by selling even faster service or bundling connectivity with subscriptions, software or support.
And a look a past lawsuits involving open wireless suggests that ISPs will need new legislation if they want to stop community Wi-Fi.
There have been only a few cases challenging open wireless access, but none against municipalities. Some ISPs have written cease-and-desist letters demanding that their customers stop sharing their broadband connections over wireless, though none of these complaints has evolved into a lawsuit. Many of these disputes are based on contractual provisions in the ISP terms of service, which often stipulate that customers won’t share their broadband connections with other people. Some ISPs, like Speakeasy, encourage customer sharing, so this restriction is by no means universal. And while individuals may not have the bargaining power to change this contractual term when signing up for whatever ISP is available in their area, San Francisco and other municipalities certainly do.
In another case, Time Warner sued a New York City company that installed routers converting the cable provider’s broadband service into building-wide wireless service. Time Warner claimed that the company was illegally capturing and reselling Time Warner’s signal. No court ruled on the validity of this argument because the parties reached a settlement agreement in which the defendant promised to stop what it was doing. But whatever company ends up providing wireless in San Francisco will do so with its own equipment and resources.
Finally, a smattering of cases have been brought against individuals for using someone else’s wireless without permission. But with free municipal Wi-Fi, everyone is authorized to use it by definition.
So without legislation, ISPs have no legal basis for stopping community Wi-Fi. But legislation is a distinct possibility. The city of Philadelphia almost had to scrap its Wi-Fi plan when the state governor threatened to sign a bill barring cities from providing internet service for a fee.
By Jennifer Granick