[MLB-WIRELESS] Commercial use of MW network

[Dan Flett]

Hi Devon,
 
You did make one mistake in attributing a quote to me which was in fact
a quote from the ACA website.  Next time I'll use ---quote begins--- and
---quote ends--- instead of ---- at the start and finish of a quote.
See below in green..
 
-----Original Message-----
From: Devon Starbuck [mailto:dstarbuck at optushome.com.au] 
Sent: Thursday, 4 March 2004 19:58
To: 'Dan Flett'
Cc: owner-melbwireless at wireless.org.au
Subject: RE: [MLB-WIRELESS] Commercial use of MW network
 
Dan

You make a good argument here, but unfortunately you are off the point
and make irrelevant assumptions. See below..in red, (HTML email :-()
(and)
A commercial premises, or any premises can host an MW node. (I agree)
 
Subsequently, anybody may use that node including the premises it is
attached to, as long as the terms and conditions of the supply of the
premises and the supply of the services is not related in any sense. If
it is, then the question will arise. (If the company whose premises it
is starts using the node in it's business activities, then according to
the ACA, the node itself is commercial.  I believe that this is how the
ACA itself sees this situation - as it states in it's own fact sheet -
see below) This is easy to circumvent (Playing funny buggers with the
ACA is not a good idea, in my opinion)
 
Regards
 
Devon Starbuck
 
PS, We do not need highly paid lawyers to do this. :-)
 
-----Original Message-----
From: owner-melbwireless at wireless.org.au
[mailto:owner-melbwireless at wireless.org.au] On Behalf Of Dan Flett
Sent: Thursday, March 04, 2004 7:23 PM
To: Melbourne Wireless
Subject: RE: [MLB-WIRELESS] Commercial use of MW network



It does pay to RTFM, Dan. :)


For those who came in late - I am referring to myself here.  I am
actually in favour of businesses using our network for free if we can
use their equipment for free also - as I have stated in my previous
posts.  But my reading of the ACA fact sheets has resigned me to
believing that Melbourne Wireless and it's membership cannot legally
allow businesses to use their network equipment.

I thought it was time at this point in the discussion to actually go to
the ACA website and read the fact sheets.  There are links to these fact
sheets from the Wiki -
http://melbourne.wireless.org.au/wiki/?LicensesFAQ

There is a questionnaire on the above Wiki page that helps to determine
whether your network service is exempt from having to have a Carrier
Licence. I found the questionnaire page slightly misleading though.
Question 3 asks "Is/are the network units used for the sole purpose of
supplying carriage services on a non-commercial basis?"

In the case we have been discussing, the actual provision of supplying
carriage services is non-commercial, even though the nature of the
communications is commercial.  This is a distinction we need to be aware
of.  The commercial or non-commercial nature of the provision a network
service is not necessarily related to the commercial or non-commercial
nature of the communications (or communicator) that use that service.

In my reading of the questionnaire I saw that it was possible to
interpret Question 3 as referring to only the provision of the service,
not the nature of the data flowing through the service.  But a
questionnaire like this is only a guide to how the legislation works and
it doesn't deal with the finer points.

I then read this ACA fact sheet:
http://www.aca.gov.au/consumer_info/fact_sheets/industry_fact_sheets/fsi
29.htm  "Wireless LANs and exempt non-commercial networks"

There are some tests that can be applied to your network to see if it
fits the concept of "non-commercial", and thereby be exempt from
requiring a carrier licence.

Test number 2 is this:
(ACA quote starts here)
----
2. Nature of persons involved in the use of the network

What is the nature of the persons involved in the use of the network to
supply carriage services and their day-to-day activities?

For example, the 'persons involved' could be a company or corporation
using the network for business purposes.  Such use is unlikely to be for
purely non-commercial purposes. (Wrong Dan) This refers to the nature of
persons SUPPLYING the service NOT those using the service. It ONLY makes
reference to the use and TO SUPPLY. If the two are seperate the above
para does not apply.) (This here quote is from the fact sheet on the ACA
website, not me.  Check the above link.  This means that this is how the
ACA itself interprets the concept of a commercial network)
---- (ACA quote ends here)

So that pretty much quashes the distinction between the nature of the
provision of the network service, and the nature of the use of that
network service. (No, it only makes it clear, if the user and supplier
are the same then 'thier nature' becomes a test) (Here I am commenting
on the ACA interpretation - I believe that they choose to make no
distinction between commercial supply of a network and commercial use of
a network.  I myself can tell the difference. :-)  Certainly a person
more versed in communications law, and just plain law than myself could
make a different interpretation.  But the fact that the ACA itself
assumes that commercial use of a network means that network itself is
commercial means that the deck is stacked against us )

So what if Melbourne Wireless Inc. was to somehow find the money to get
a Carrier Licence?  Well even then it probably wouldn't allow the nodes
on the MW network to accommodate commercial use because Melbourne
Wireless does not own any nodes itself. (Somewhat irrelevant, refer Melb
Wireless's articles and MOU)

The legislation and the fact sheets refer to owners of "base stations"
(we call them nodes) needing to have Carrier Licences.  That means each
and every one of us who owns equipment that comprises a node.  We'd all
need our own individual Carrier Licences. (Wrong again. A Carrier eg.
Melb Wireless in your example, can license the node from the property)
(Melbourne Wireless Inc. is not a Carrier.  It facilitates the network
by getting interested persons together and encourages them to link to
each other, but it can not be said to be a network provider itself)

So wether you are philosophically opposed to commercial use of the MW
network or not, the law of the land says we can't allow it. ( Wrong
agian, My opinion is we cannot do it for commercial advantage, that is
my understanding of the law and will stick to it untill proven
otherwise!) (Please take some time to peruse the fact sheets on the ACA
website - with an open mind.  Whatever you think, unless you're a lawyer
MW can only take your and my views as the opinions of lay persons) I
imagine that if we had an army of high-priced lawyers we might be able
to challenge that law.  But we don't. (Wrong again, we dont need to
challenge the law. They need to take action against us first, and that
is totally unlikely given it is legal in my opinion)  (OK True, but we
don't want them taking action against us, we want to be on their good
side - my point is we can't afford court action) Our Melbourne Wireless
committee could lobby the government at some point in the future if the
sentiment of the MW membership was more receptive in such commercial
arrangements. (Oh, commercial arrangements now. There IS no commercial
arrangement between the user and MW, therefore it is TOTALLY legal. A
commercial arrangement would be unlawful if MW entered into one.)  (The
arrangement is this: you can use our equipment if we can use yours - not
a monetary arrangement but an arrangement nonetheless) But as far as I
see, that's not how it is right now.  And that's how community
organisations work - democratically. (WHAT? If a MW member wishes to
supply services to somebody, they do not need MW's approval...bah). (If
MW's members act as rogue agents do you think that the ACA would be
happy to allow MW to have a carrier licence?  MW does favour the
soft-touch approach to making and imposing rules on it's members - this
is great for fostering a grass-roots movement but unlikely to get us
approval for a carrier licence even if we could afford it.)
 
The rest is relevant given the above assumptions


How does all this affect our quest to find Backbone node sites?  In the
case of commercially owned premises we can't offer bandwidth on the MW
network as inducement for them allowing us to locate nodes on their
property.  And the owner who does allow someone else's node to operate
from their premises is open to all sorts of legal and insurance risks.
We need to think of other ways of rewarding those who would house our
nodes, or appeal to the goodness of their hearts.

It seems that the people who are by far most likely to be willing to
house nodes are those who have already made their minds up that the
"freenet" concept that Melbourne Wireless facilitates is a Good
Thing(tm).  As the law currently stands, Melbourne Wireless is destined
to remain a grass-roots network.

The best way of improving network connectivity is to simply increase
awareness of Melbourne Wireless and it's principles which in turn
increases the membership and node density.  We also need to do as much
as we can to get the as many of the current members (and those who have
registered in Locfinder) active on the network.  Which is exactly what
Melbourne Wireless has been doing for the past two years.

To finish this rather long post I will say that community organisations
forming alliances with commercial interests is by no means unheard of. I
was involved with Melbourne's community TV station Channel 31 for a
number of years - since before they went on air in 1993.  The costs of
running a television station are huge - even if all your staff are
volunteers, and especially if you are very limited in the funds you can
raise through advertising.  Channel 31 was only able to get on air by
making an agreement with the Harness Racing Board.  The HRB basically
paid for Channel 31's transmitter in return for being able to put
telecasts of Harness Racing to air on Saturday nights.  There were those
who were opposed to the HRB's involvement, but the simple fact is
Channel 31 would not have gotten on air without them.

Melbourne Wireless is a different case, of course.  It is possible for
us to get some sort of network going without commercial help, it's just
a question of how widespread the network will be and how fast it will
grow.  It's up to us to make the network the best it can be given the
restraints of the law.

Cheers,

Dan

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