“I believe that transparency is best achieved through the creation and publication of clear rules. However, for the regulatory regime to be successful, these rules must also be strictly enforced. Based on personal experience, I know that the U.S. regulatory model has only been successful when the FCC has enforced its rules vigorously. Failure to enforce rules sends the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity.” -- Remarks of Commissioner Kathleen Q. Abernathy, Market Reform: A Tool for Achieving Universal Access Panel, ITU Global Symposium for Regulators. Geneva, Switzerland, December 8, 2003

Under current legislation, enforcement is an integral part of the FCC’s job. But it is a lot more fun creating new services and issuing licenses than it is penalizing people for antisocial actions. But as Comm. Abernathy said above during her tenure at FCC, the two go hand in hand.

Thus it is interesting to note the current list of Items on Circulation. There are now 32 items on circulation on the 8th Floor - a major decrease over the historic level! Of the 19 items that have been on circulation for more than 3 months, 8 appear to be enforcement related. These include 3 from the June-September 2008 period that have now spent almost 2 years on the 8th Floor without resolution. The list of all items on circulation more than 3 months is below:

So on today, the 6 month anniversary of our enforcement complaint being on the circulation list, we will not complain about that. But we ask what is served by having these other matters pending for such a long period. Note that this date shown below is only the date that the agenda item reached the 8th Floor. Each issue probably was pending for a long time before it ever got to that high level.

My friends at FHH CommLawBlog had a recent post announcing “Jammer Jammed: Cell phone jammer company assessed $25,000 for two Internet sales”.

“We have written elsewhere about the irritations of other people using cell phones in public places. Technology, having caused this problem, also offers a solution: widely available on the Internet are jammers that silence phones nearby, and sometimes at a considerable distance. We Googled “cell phone jammer” and found dozens of places selling them.

Some outfit calling itself the “Federal Communications Commission” has declared jammers to be illegal. Recently it levied a fine of $25,000 against a company with the unwisely chosen name of “phonejammers.com” that offers them on the Internet.”

Sounds like FCC is back in the enforcement business? Maybe not or at least not with any enthusiasm. After a long time period a $25,000 fine with no equipment seizure. Surely Phonejammer’s legal bills were much higher than this fine. Is this a message adequate to deter Phonejammer or anyone else from such activity?

A previous post described the 23 month saga of FCC enforcement action against a GPS jammer. So how did FCC do in the present case? Well, maybe 23 months is a secret time limit for enforcement action. So here are milestones in this case from the public released FCC Notice of Apparent Liability for Forfeiture (“NAL”):

• “On May 22, 2008, the Spectrum Enforcement Division (“Division”) of the Enforcement Bureau (“Bureau”) issued a Citation to Phonejammer pursuant to Section 503(b)(5) of the Act”
• “On November 9, 2009, the Bureau’s Dallas, Texas Field Office (“Dallas Field Office”) received a complaint from a provider regarding interference to its authorized cellular and PCS frequencies in the 800 MHz and 1900 MHz bands...During the course of its investigation of the complaint, the Dallas Field Office determined that the interference had been caused by a 5 watt adjustable power jammer identified as Phonejammer model number PJ005 (“Model PJ005”), installed at a Carrollton business.”
• “On February 4, 2010, the Division issued a Letter of Inquiry (“LOI”) initiating an investigation into Phonejammer’s marketing of phone jammers in the United States.”
• “In March 2010, during the course of investigating a complaint from the St. Lucie County, Florida Sheriff’s Office (“SLCSO”) regarding interference to cellular and PCS frequencies utilized by SLCSO detectives, the Bureau’s Tampa, Florida Field Office (“Tampa Field Office”) traced the interference to a phone jammer installed at a business located in Port St. Lucie, Florida.”
• April 20, 2010 - NAL released by FCC

So it looks like the investigation go lost after the May 2008 initiation. The FHH CommLawBlog folks point out, “We Googled ‘cell phone jammer’ and found dozens of places selling them.” Does EB use Google?

A key issue throughout the investigation was the statement by Phonejammer that they were not actually selling jammers within the US. Did EB attempt an “undercover buy” to nail down this point early?

If EB takes years to deal with blatantly illegal GPS jammers and cellphone jammers, it is unlikely they deal at all with other equipment that has more subtle violations such as power exceeding legal limits or strong out-of-band emissions. Sources in EB tell me that during the DTV transition when EB agents were visiting electronics retailers in large numbers to check for proper labeling on TV receivers being sold they were actively discouraged from noticing other equipment being sold that was illegal. Thus a return to the Adm. Nelson “telescope to the blind eye” approach.

But the continued indifferent approach to enforcement raises the real possibility of massive sales of an interfering device before regulatees demand action which then could be too late.

Enforcement may not be as much fun as making the NBP, but it is also part of the job for FCC

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Parenthetically, the NAL contains in para. 6 the sentence, “Thus, intentional radiators that cannot legally be operated – because, for example, they interfere with or jam authorized cellular or PCS communications in violation of the requirements set forth in Section 333 of the Act – are not eligible for a grant of equipment certification.”

When your blogger worked at FCC, OGC was very strict on forbidding the staff to say in documents written under delegated authority what powers the FCC did not have. This quote in the NAL has not footnote other than a general cite to Section 333. As the South Carolina Department of Corrections and 28 other state corrections agencies have said in their petition, this view is inconsistent with the legislative history of Section 333 - which resulted from a request of EB’s predecessor from cases dealing with aircraft jamming by licensed pilots. July 13th will be the first anniversary of the SCDC petition’s filing which has seen no public action yet.