By Matthew Catania

Free  Wi-Fi will be coming to New York’s thirty-two public parks next year, thanks to a pending deal the city’s Department of Information Technology and Telecommunications (DoITT) brokered with Time Warner Cable and Cablevision. But the ‘free’ Wi-Fi under the deal is not unlimited.  In fact, it is only three ten-minute sessions per month that are being offered without charge. The three installments must remain as three ten-minute installments; they can’t be combined into one thirty- minute session or two fifteen-minute sessions.  And after the three sessions are over, users who want to use Wi-Fi in the city’s parks will have to pay 99¢ per day.   (The fee will be waived for Cablevision and Time Warner subscribers.)

Rather than billing it as “free”, it would be more apt to call the offer a subscription service. Naturally, this set-up hasn’t gone over well with Wi-Fi fans and New Yorkers looking forward to surfing the web in the City’s parks are irritated. The online consensus is that the free intervals aren’t long enough to be useful, and there are even some accusations of illegality.

So is this deal a bait and switch? Has the Mayor sold the city out to the cable conglomerates? And is Wi-Fi a public good that can’t be privatized? Let’s examine the legalities.

Since ten minutes of Wi-Fi access is insufficient for the needs of most park patrons, there’s a high likelihood that they’ll splurge for the unrestricted use. This has led the head of NYC Wireless to suspect that users will be lured into paying for what is promoted as free service. This could be in violation of state laws against false advertising and deceptive trade practices. The cable companies won’t have this problem if they clearly disclose to users that the Wi-Fi service will operate like a subscription service. Full disclosure will undoubtedly be part of the user agreement for setting up the accounts to use this Wi-Fi.  Anything less than full disclosure would invite lawsuits.

Legally, this Wi-Fi deal is considered a franchise because the cable companies are buying the right to from the Mayor’s office to use public property to provide a public service. This means the Time Warner and Cablevision can occupy the City’s property, its public parks, to provide a public service, Wi-Fi, to citizens.  The city’s charter and state law require the following steps be taken to grant a legitimate franchise:

1. The City Council must approve an Authorizing Resolution to grant and renew franchises. The cable franchise resolution was granted in 2006.

2. The City must issue solicitations for franchise bids from cable companies. DoITT did so in 2008.

3. DoITT and the cable franchise must negotiate the proposal so it complies with federal law.

4. The franchise agreement must be approved by the Franchise and Concession Review Committee (FCRC) by at least five votes. The FCRC has six members representing the Mayor, the Law Department, the Office of Management and Budget, the Comptroller, and the Borough Presidents.

5. The FCRC’s decision must be approved by the Deputy Mayor.

6. The new franchise agreement must be registered by the Comptroller.

7. New York State Public Service Commission must effectuate the franchise by granting a certificate of confirmation.

The City Council held a public hearing on the topic on January 26, so this Wi-Fi deal appears to be somewhere between steps 3 and 4. While this franchise puts park patrons out of pocket to take full advantage of the service, there’s no evidence that Cable Vision and Time Warner bribed the City into accepting a lousy deal at the public’s expense.  As long as the rest of this franchise process is completed, there won’t be anything illegal about the deal. If it’s found to violate antitrust laws, however, then this franchise could be rejected.

While Wi-Fi is a public service, it isn’t an inalienable public good. Pure public goods have two characteristics: The first trait is there is no need to compete to gain access to the service. The second is that members of the public can’t be prevented from using them. An example of a public good is a streetlamp. There is no competition between citizens to use the benefit offered by streetlamps because the light offered by the lamps can be used by many people simultaneously. And cities can’t prevent anyone from using the illumination of these streetlamps.

Wi-Fi only meets half the criteria for being a public good. An unlimited number of users should be able to use the parks’ Wi-Fi at the same time. The cable companies, however, have the ability to block access to this service to anyone who exceeds their thrice-monthly allotment of free Wi-Fi.  And so long as services are not public goods, it is legal to charge for them.

Outside of libraries and schools, users have always had to pay for Internet access. Just because some hotspots provide Wi-Fi for free, it does not mean that that the public has a right to free Wi-Fi. The fact that these hot spots are in public parks doesn’t make the Wi-Fi access any more free than the giant pretzels that are also purchasable in the parks.

And while the proposed deal will make Time Warner and Cablevision the dominant Wi-Fi providers for city parks, these companies won’t have a monopoly over Wi-Fi throughout the city.  Bryant Park is expected to keep its free Wi-Fi service running independently. Non-profit organizations like NYC Wireless and Downtown Alliance also host a variety of totally free hotspots throughout the city. Users only need provide a valid email address to use the alternative Wi-Fi, whereas an account providing billing information is necessary to use the subscription Wi-Fi.

Note to users who don’t want to pay a dollar a day for unlimited Wi-Fi in Central Park:  Stop complaining.  Just go to one of these locations and get (truly) free Wi-Fi.