ex part enforcement at FCC, or lack thereof, has been a recurring topic here. We now have 3 basic eras of FCC practice in FCC enforcement of its ex parte rules.

1. 1978 - January 2011

   “Professional courtesy” combined with “holding telescope to the blind eye” approach. During this 33 year period FCC did not have a single written record of finding an ex parte violation. There is anecdotal evidence that some ex parte complaints were resolved with phone calls to violators and verbal warnings but no written public records exist. Naturally, some entities with little interest in transparency noticed this and saw it as a blank check to do whatever they wanted.

2. January 11, 2011 - August 3, 2011

   FCC starts more aggressive review of complaints with its 1/11/11 finding that Magnum Communications was guilty of a violation - the first EVER written finding of a violation.

3. August 3, 2011 ->

   FCC announces 3 findings of violations based on “a spot check of ex parte notices to assess compliance”. In this new era FCC not only finds violations but does not depend solely on complaints.

Imagine the surprise on August 3, 2011 when USTelecom, Public Utility Commission of Texas, and Parrino Strategic Consulting Group received similar letters saying based on a spot check they had been found to violate Section 1.1206(b)(1). Now there was no penalty or even a warning or probation, but they were told “Accordingly, we ask that you file a supplemental notice that complies with the rule within one week.”

As another sign of assertiveness, one July 28, 2011 FCC found that Christian Media, Inc. “violated the Commission’s ex parte rules by soliciting impermissible ex part letters from members of Congress in violation of 47 C.F.R. § §1.1208 and1.1210” and referred the matter to the Enforcement Bureau “to determine whether a forfeiture is warranted”. As stated previously, your blogger doubts that Title V of the Communications Act permits fines in the case of such violations. So my unsolicited “free legal advice” to Christian Media, Inc. is: don’t start liquidating assets now to pay for a possible fine.

But kudos to FCC/OGC for these major changes in ex part enforcement that will either increase compliance OR lead to the realization that there is a good reason why every other federal agency uses a different approach in dealing with ex parte presentations.

Tags: ex parte, enforcement

On October 5th, FCC’s Enforcement Bureau announced a major enforcement initiative on various types of illegal jammers. Oddly it actually was initiated on September 30th as shown on the citation shown at the right, but the FCC’s PR experts appear to have hesitated while they wordsmithed the news release. Hopefully this is not a bad sign of indecision or poor leadership on this issue. Normally major issues have a PN released the same day as the action.

Readers may recall that enforcement has been a recurring theme here and your blogger has criticized both the Commission for its disinterest and major trade associations that have myopically made this a low priority issue in their interactions with FCC.

The PN stated,

The FCC Enforcement Bureau has issued 20 enforcement actions against online retailers in 12 states for illegally marketing more than 200 uniquely-described models of cell phone jammers, GPS jammers, Wi-Fi jammers, and similar signal jamming devices. These devices have the capacity to prevent, block, or otherwise interfere with authorized radio communications in violation of section 302(b) of the Communications Act and sections 2.803 and 15.201(b) of the Commission’s rules.

The Enforcement Bureau’s actions are intended to warn retailers and potential purchasers that marketing, selling, or using signal jamming devices in the U.S. is illegal and that the FCC will vigorously prosecute these violations.

Enforcement Bureau Chief Michele Ellison said, “Our actions should send a strong message to retailers of signal jamming devices that we will not tolerate continued violations of federal law. Jamming devices pose significant risks to public safety and can have unintended and sometimes dangerous consequences for consumers and first responders.”

Unfortunately EB included in the Citation text that clearly would have gotten a staffer into trouble during my nearly 25 year tenure at FCC: it prejudged the commissioners on something they had never ruled on. Para. 9 of the Citation states

Signal jammers, however, cannot be certified or authorized because their primary purpose is to block or interfere with authorized radio communications. As noted above, a device intended for such use is clearly prohibited by section 333 of the Communications Act. Thus, signal jammers such as those offered by each of the Online Vendors identified in Appendix A cannot comply with the FCC’s technical standards and therefore cannot be marketed lawfully in the United States or its territories.

First, “ a device intended for such use is clearly prohibited by section 333 of the Communications Act” is clearly not the meaning of Section 333 which deals with jamming, not jamming equipment. Section 302(b) gives the Commission to ban equipment that does not complies with its regulations for transmitters and the lack, at present, of any such regulations for jammers is thus illegal. Isn’t that clearer than misconstructing Section 333? I believe that anyone with a legal background will see that the references to Section 333 in the Citation adds nothing to this marketing case and is only posturing unsupported by any citations to regulation or precedent.

In its new found jammer marketing enforcement enthusiasm, EB also updated its FAQ on GPS, Wi-Fi, and Cell Phone Jammers. Unfortunately, in doing so it pandered excessively to CTIA lobbying and ignored the lack of any en banc Commission precedent on its interpretation of Section 333. The new FAQ, gives the text of Section 333 and then states “Jammers cannot be marketed or operated in the United States except in the very limited context of authorized, official use by the federal government.” This, at best, fuzzifies whether the Commission has the legal jurisdiction to authorize jammers in some contexts for nonfederal users and fully agrees with CTIA petition of November 2, 2007 that the Commission has never even asked for public comment on (with the exception of the section on bidirectional amplifiers that is being considered in Docket 10-4).

This highlights the inability or unwillingness of the Commission to take any action on the CTIA petition or to take any action on contrary points of view in the July/August 2009 petition of the South Carolina Department of Corrections and 30 other states to allow jamming in prisons to control illicit cellphone use and the 7/20/11 GTL petition that deals with both jamming and “managed access”. Both of the latter petitions contain legal arguments addressing why Section 333 does not limit the Commission’s jurisdiction in this area. So if this were so clearcut, FCC would have dismissed the CTIA petition as moot and the other petitions as being beyonds its jurisdiction. However, the 8th Floor remains silent on this public safety issue apparently for fear of offending CTIA.

So kudos to EB for the enforcement action it has initiated at last and a minor criticism for its pandering to CTIA on the FAQ. Let’s hope that EB follows through on this enforcement action by working with DOJ to seize inventory and assets of the perpetrators, not just asking them to reply and giving them opportunity to restructure. EB’s predecessor, the former Field Operations Bureau used to take such aggressive action from time to time. A few veterans of that era still work in EB, maybe they should be consulted on more assertive options for these devices that endanger public safety.

But at the risk of sounding like a broken record, isn’t it time for FCC to address the several petitions it has on prison jamming where the intention is to protect the public safety and resolve both the jurisdictional issue Section 333 and the technical issue of whether the benefit of prison jamming outweighs whatever interference risk it determines results from it?

UPDATE (11/13/11)

As your blogger expected, the EB action above did not get immediate compliance. Today, at least one of the cited firms, Espow International, Ltd of Jersey City, NJ (http://www.espow.com/) was still selling the very models cited!

Those of us with experience in the former FOB know that this type of citation is not reliable in achieving compliance for people profiting from such obviously illegal equipment. FOB used to get court orders to seize inventories of personal computers that did not have proper FCC equipment authorization and that posed much less of a public safety threat than the unauthorized jammers involved here.

The equipment importing and marketing sectors know full well that for the past decade or so FCC has shown little interest in marketing enforcement and bolder action is needed to overcome a decade of inaction. Generally, such enforcement at FCC has no constituency and projects without strong outside supporter tend to get few resources at FCC. The major trade groups will have to unite and praise FCC for these first steps but urge more assertive action to start a real cleanup.

Tags: enforcement, prepaid cellphone

The FCC/EB webpage linked to the picture above now lists 17 FCC enforcement actions related to U-NII interference to FAA TDWR weather radars since 2007. For those not familiar with the jargon here, a March post here reported how 5 GHz unlicensed U-NII equipment operating in the 5.47-5.725 GHz band are required to have dynamic frequency selection (DFS) as defined by 15.407(h), basically a listen-before-talk (LBT) cognitive radio system, in order to avoid interference to several types of federal government radar systems that operate in the same band. The Terminal Doppler Weather Radar, an FAA weather radar near airports, has been receiving interference in several cases despite this requirement. The big question - Why?

NTIA/ITS recently released the second of a 3 part report series that deals with the issue as shown at left. This report has the following interesting quote:

(One)U-NII device was tested against FCC DFS certification waveforms and it did not detect any. It also failed to detect any emulated TDWR waveforms. The device, however, was FCC certified, meaning it had passed these same tests when the FCC laboratory tested its DFS performance. A firmware update from the manufacturer eventually rectified this problem, illustrating how firmware upgrades can lead to DFS non-compliance.

This strongly implies that the manufacturer changed the firmware after FCC approval. While the original FCC software defined radio (SDR) rules would have made such a software change a Class 3 Permissive Change and required regulatory review, the softening of the rules in Docket 03-108 and deletion of the former 2.932(e) gave a green light to such software changes.

Two March 2010 enforcement actions seem to confirm this. These involved Airspan and Motorola. Airspan agreed in a consent decree as follows:

Remedial Measures. Airspan has developed and distributed to its United States MicroMAX customers a software upgrade for its MicroMAXdevice that prevents users from disabling the DFS radar detection mechanism and varying any other operating parameters of the device.

Thus they were selling a unit where the users could turn off the required DFS capability needed to protect safety-related FAA radars! Airspan agreed to make a $10,000 “voluntary payment” to the Treasury as part of the consent decree.

Motorola agreed to a $9,000 “voluntary payment” but their consent decree is more cryptic than the one for Airspan or a similar one for Axxcelera Broadband Wireless, Inc. that appears to be based on a hardware component issue not a software change. The Airspan consent decree has clearly stated “remedial measures” that says what they will correct, Moto gets off with a $1,000 small “voluntary payment” (trivial to what this must have cost in legal fees), a vague agreement to train their employees better:

Motorola will train and provide materials concerning Section 302(b) of the Act and Parts 2 and 15 of the Rules pertaining to U-NII devices and the requirements of the Consent Decree to those of its employees who are involved directly in the development and marketing of U-NII devices imported, marketed and sold by Motorola in the United States.

Cryptically the consent decree states

On April 20, 2009, the Bureau issued an LOI (letter of inquiry) to Motorola. The LOI directed Motorola to submit a sworn written response to a series of questions relating to the marketing and selling of U-NII devices. Motorola responded to the LOI on May 20, 2009.

The content of Moto’s response to the LOI indicating how this happened is not on the public record. This is reminiscent of the “professional courtesy” Moto used to get from FCC when it was the dominant player in the mobile radio field and contrasts with how the lesser firms, Airspan and Axxcelera, were treated - they both paid a greater “voluntary payment” and had their violation more explicitly reported. Moto’s failings are not given in the public document, only in the referenced in the publicly unavailable 5/20/09 LOI response.

The coddling and preferential treatment of Motorola was common in the past but neglects the fact that it may have contributed to Moto’s lack of competitiveness and its ultimate demise as the top mobile radio firm. In the past Moto may have stressed its regulatory prowess over its technical prowess and was not prepared for the level playing field that cellular presented with new competitors. As Trefis reported

Motorola’s market share is expected to decline from a high of 22% in 2006 to 2.8% in 2010, [3] and could continue to decline to 1.6% by the end of Trefis forecast period(2011).

UPDATE

You blogger has filed a FOIA request for the above mentioned Motorola response to the FCC letter of inquiry (LOI) and will publish here the text when received. Today, the following interim response from FCC was received:

Your Freedom of Information Act ("FOIA") request dated August 11, 2011, was assigned to the Commission's Enforcement Bureau. You seek the response to a Letter of Inquiry ("LOI") issued in the Enforcement Bureau's investigation of Motorola, Inc. ("Motorola") (EB-09-SE-064). Motorola responded to the LOI on May 20, 2009. This email is to inform you that Motorola filed a request for confidential treatment of most of its LOI response pursuant to 47 C.F.R. § 0.459 of the Commission's rules. Since the confidentiality request is pending, pursuant to Section 0.461(d)(3) of the Commission's rules, we will serve Motorola with a copy of your FOIA request and afford them 10 calendar days to respond. Motorola also is required to serve you with a copy of its response.

The criteria for withholding such information is given in 47 CFR 0.457(d) . We patiently await word from Motorola if it is willing to let the world know why its equipment violated FCC rules or whether they will fight the release of any substantive information.

Tags: FAA, U-NII

The issue of FCC equipment marketing enforcement has been a recurring issue here. Mitchell Lazarus, writing recently in FHH CommLawBlog pointed out the strange case of a recent Notice of Apparent Liability dealing with alleged AT&T use of 5605 MHz in San Juan PR. The NAL states

As part of its ongoing coordination efforts with the Federal Aviation Administration (“FAA”), the Enforcement Bureau received a complaint that radio emissions were causing interference on or adjacent to the frequency 5610 MHz to the FAA’s Terminal Doppler Weather Radar (“TDWR”) installation serving the San Juan International Airport. ... On December 7, 2010, agents from the Enforcement Bureau’s San Juan Office (“San Juan Office”) conducted an investigation on the roof of the Miramar Plaza Condominium Building in Santurce, Puerto Rico. The agents from the San Juan Office confirmed by direction-finding techniques that radio emissions on frequency 5605 MHz were emanating from the building’s roof, the location of one of AT&T’s U-NII transmitters, a Motorola Canopy. The Canopy model is certified for use as a Part 15 intentional radiator only in the 5735.0 - 5840.0 MHz band and is not certified as a U-NII intentional radiator.

In his blog post, Mr. Lazarus comments

In cases where a transmitter fails to match its certification, as here, the FCC usually cites the manufacturer. Going after AT&T makes sense only if the FCC thinks the transmitter was compliant when shipped, and that AT&T took it out of the box, re-tuned it to an unauthorized frequency, and turned off the DFS. That would indeed be a blatant offense. But the FCC does not accuse AT&T of doing this. The farthest it goes is to say AT&T “consciously” operated at the unauthorized frequency.

From the NAL, we know that the equipment in question was “a Motorola Canopy model #5700, FCC ID ABZ89FC5804” (fn.11) and a check of the FCC authorization data base shows that the most recent grant for this equipment gives its frequency range as 5735.0 - 5840.0 MHz. So why was it transmitting at 5605 MHz? Did AT&T staffers or contractors modify the equipment illegally? In that case an even larger fine seems of order. Is the Motorola unit a software defined radio that could be retuned via a software download?

The original software defined radio (SDR) rules adopted in Docket 00-47 in September 2001 had the following requirement:

2.932(e) Manufacturers must take steps to ensure that only software that has been approved with a software defined radio can be loaded into such a radio. The software must not allow the user to operate the transmitter with frequencies, output power, modulation types or other parameters outside of those that were approved. Manufacturers may use authentication codes or any other means to meet these requirements, and must describe the methods in their application for equipment authorization.

In comments filed in Docket 03-108 this rule was challenged by several parties. The R&O states:

A number of parties support a requirement for devices to comply with the rules for software defined radios if the software and operating parameters can be easily changed post- manufacture and/or that pose a high risk of causing interference to licensed services such as public safety.

Intel states that those devices that use software defined radio as a manufacturing technique and are not intended to be modified in the field should not be required to be declared as software defined radios, and that the Commission should impose requirements on only those devices where the manufacturer intends to allow modifications in the field. Vanu, Inc., a manufacturer of software defined radios, believes that mandatory certification as software defined radios may be desirable when harmful interference may result from a foreseeable modification to the device’s software by a third party. It states that the Commission could adopt security requirements that are not limited to radios that meet the definition of software defined radios. The National Public Safety Telecommunications Council and the SDR Forum believe that the Commission’s concern should not be that a radio could be reprogrammed on an individual basis because the number of radios potentially affected that way would not be significant.

Motorola Canopy model #5700
While Motorola did not participate in this issue, it is likely they had a role in drafting the National Public Safety Telecommunications Council position on this issue as Motorola has a long history of speaking through user groups on such issues. As a result of these concerns, the former 2.932(e) was replaced with the present 2.944 which does not apply to transmitters unless the “software is designed or expected to be modified by a party other than the manufacturer”. Thus the Canopy unit in question is exempt from any security requirement on its software because it was not marketed to allow user changes of the operating band and is not declared to FCC to be an SDR.

So there are several possible explanations of what happened in the San Juan case:

1. an unintentional manufacturing error in software or hardware left the Canopy unit capable of operating at 5605 MHz. (Use of this frequency is only permitted if the unit has dynamic frequency selection capability to avoid radar systems. This Canopy unit does not have that capability.)
2. Motorola violated its equipment authorization grant and intentionally shipped a unit capable of operating on 5605 MHz
3. AT&T or a contractor modified the the software in the Canopy unit to change the frequency out of the authorized band.

Note that the 3rd case would have been covered by the former 2.932(e) but is not covered by the present 2.944.

So while I don’t have a lot of sympathy for AT&T in this case, it would appear that either Motorola is at fault in its sale of the Canopy unit, in which case its dealers would also be culpable or this case highlights an error in the logic used by the Commission in 2005 for watering down the former 2.932(e) requirement into the present much weaker 2.944 requirement.

It is ironic that when I spoke to the SDR Forum on a panel last year (just prior to the group changing its name to Wireless Innovation Forum) someone asked the panel if the FCC SDR security rules were too weak. I think they are and are the most likely root cause of this incident, but that is what the SDR Forum and others myopically asked for in Docket 03-108 and the FCC complied, ignoring concerns stated by Cingular/Bellsouth at the time.

Let’s hope FCC gives us a full explanation of what really happened in San Juan so we can avoid similar events in this and other bands.

While we are at it, it would also be useful for FCC and NTIA to publicly state why TDWR interference is a recurring problem given that NTIA was able to dictate the terms of the U-NII rules for the shared band. I suspect that DoD dominated the IRAC discussions of the issue and FAA naively assumed that DoD would watch out for all federal radars, not just military units, so did not realize until it was too late that TDWR was different than the military units in some key aspects.

”In recent years, the number of websites offering “cell jammers” or similar devices designed to block communications and create a “quiet zone” in vehicles, schools, theaters, restaurants, and other places has increased substantially. While these devices are marketed under different names, such as signal blockers, GPS jammers, or text stoppers, they have the same purpose. We remind and warn consumers that it is a violation of federal law to use a cell jammer or similar devices that intentionally block, jam, or interfere with authorized radio communications such as cell phones, police radar, GPS, and Wi-Fi. Despite some marketers’ claims, consumers cannot legally use jammers within the United States, nor can retailers lawfully sell them.”

The above text and poster appeared on the FCC website last week as part of a multimedia offensive against illegal jammers. This offensive included an “Enforcement Advisory for Users”, an “Enforcement Advisory for Retailers and Manufacturers”, a news release, a web page on jammer enforcement, a blog on jammer enforcement, and even a Twitter feed on jammer enforcement!

Readers may recall that FCC foot dragging on enforcement of existing jammer rules and laws has been a recurring theme here and the subject of a recent FCBA talk by your blogger. (By contrast, your blogger disagrees with mainstream thinking within the cellular industry on whether the FCC could authorize limited jamming in prisons and on the meaning of Section 333 of the Communications Act.)

The EB “Jammer Enforcement” lists 68 enforcement actions against jammer since 10/04 - impressive at first look. However, a little analysis shows what is really happening here. Only one of these involved a fine (“NAL” in FCC jargon). That involved the appropriately named Phonejammer.com . In this case FCC issues a citation to the company on May 22, 2008 and issued the NAL on April 20, 2010 - 698 days later! It is unclear if Phonejammer.com ever paid the NAL or just morphed into another corporate identity.

The only other fines on the list going back to 2004 are also telling. They both involve Rocky Mountain Radar, a manufacturer of police radar jammers. The 8/14/07 Forfeiture Order has this explanation:

On January 31, 2007, the Spectrum Enforcement Division issued a Notice of Apparent Liability for Forfeiture ("NAL") in the amount of $25,000 to RMR. RMR has not filed a response to the NAL. Based on the information before us, we affirm this forfeiture.

Thus RMR did not even bother responding to FCC/EB! I suspect other jammer sellers will get the message here. A review of the RMR website seems to indicate that similar products are still being sold and they are still selling manuals for the models listed in the citation.

Thus not withstanding the new tweets and blog posts, there is nothing here that would really scare a firm intent upon selling either cell phone or GPS jammers. More puzzling than the FCC/EB inaction on the jamming issue is why CTIA and NAB condone the ineffectual enforcement. CTIA seems more concerns about keeping strictly regulated jamming out of maximum security prisons in rural areas where they could save lives than in keeping wantonly illegal jammers out of the market.

What is needed in jammer enforcement is not tweets about noncredible enforcement, rather some real enforcement! Let me repeat my call from the January FCBA talk:

• Incumbent spectrum users need to work together to advocate an effective compliance/enforcement program at FCC

• Recommend major trade groups form a compliance/enforcement advocacy consortium

On January 26, 2011, the Commission released two citations, shown above, for the marketing of cellular telephone jammers. Although your blogger has argued here that the Commission has the authority to authorize the use of cell phone jammers in prisons if it adopted new rules, it is unambiguous that the jammers being sold here were illegal because they had not equipment authorization and thus selling them violated Section 302 of the Communications Act.

In August 2009, I wrote here about an enforcement case involving the sale of a GPS jammer. At the time I used the following calendar to show the foot dragging involved in this action:

So how has timeliness improved? Note that in both the GPS and cell phone cases there was no question that the devices being sold were illegal and the sale violated Section 302. Note that violations of Section 302 are a misdemeanor and punishable as a criminal act under Section 501.

The two companies involved in the citation were DeadlyDeal.com and Comtrex Communications Ltd. Reading the citations carefully one sees that FCC was aware of DeadlyDeal.com’s marketing at least by April 8, 2009, yet did not even communicate with the company until February 18, 2010, 325 days later. In the case of Comtrex Communications Ltd., FCC was aware of the marketing at least by by June 9, 2009 and sent the first communications to the company September 29, 2009, 112 days later.

But both the GPS case and the present cellular cases ended up the same way with citations with no explicit penalty, except perhaps postage to respond to FCC letters. What type of deterrent is this for future illegal marketing by others?

On January 25, I gave an invited talk at the FCBA FCC Enforcement Brown Bag Lunch on the subject on unlicensed devices and enforcement. Here are the slides I used. I made the point that ever since the reorganization of the former FOB into Enforcement Bureau, the technical staff there has suffered from poor morale and poor leadership and that incumbent spectrum users need to advocate for more effective enforcement and leadership or major interference problems are likely to arise. This dilatory indecisive action in both the GPS jammer case and the cellular jamming case highlights how large numbers of interference causing devices could enter the marketplace before FCC takes any action. I urge the major spectrum incumbents and their trade associations to engage FCC senior leadership on how unacceptable this indecision is and the risks that result from it.

Furthermore, the lack of credible enforcement leads incumbents and NTIA to be reluctant to allow new technology near their bands for fear that noncompliant equipment will cause interference and there will be no timely FCC action. Thus the compliance status quo actually limits the Commission’s Title III policy options for new technologies!

IT GETS STRANGER!

Shortly after this was posted, Steve Crowley sent a comment to the blog pointing out that on the same day EB issued these 2 citations it issued a $10,000 NAL (fine) to an Arizona car dealer for unlicensed use of GMRS, a CB-like radio service than needs a license. Steve asks, “Is that worse than selling illegal jammers?”

So not only did EB act more promptly in the GMRS case than in the cell phone jamming cases and the GPS jamming case, they took decisive enforcement action rather than the toothless citation issued for these 3 jamming equipment cases. Where does CTIA and its membership stand on this type of enforcement? Should the 8th Floor ask for an explanation?
====

On a side issue, both the citations have this paragraph in them:

Jamming devices, however, cannot be certified or authorized because the main purpose of a jamming device is to block or interfere with radio communications. As noted above, such use is clearly prohibited by section 333 of the Communications Act. Thus, cell phone jammers, such as the Blocker, cannot comply with the FCC’s technical standards and therefore cannot be marketed in the United States.

This is the CTIA party line on its preferred interpretation of Section 333. The paragraph in the citations has no references to Commission decisions or court cases because there are none on this issue. This interpretation shows up in staff actions taken on delegated authority and in the case of these specific citation is irrelevant because sale of the devices violated Section 302 regardless of what Section 333 means. Their inclusion here is either because of ignorance or a desire to pander to CTIA. Repeating the same interpretation does not make it correct! The Commission has been sitting on the petition of South Carolina and 30 other states for over a year now. If this was such a clear issue they would have dismissed the petition per Section 1.401(e) of the FCC Rules months ago.

Monday’s decision by Federal Judge Henry Hudson to declare part of “Obamacare” unconstitutional brought back a name from the past with a little known connection to FCC. In the late 1980s, having been exiled from the Office of Engineering and Technology for the sin of creating what became Wi-Fi and Bluetooth and offending traditionalists both inside and outside FCC, you blogger was spending his exile in the former Field Operations Bureau, predecessor of today’s Enforcement Bureau.

On Labor Day weekend 1987, the Playboy satellite channel’s uplink was jammed by an unknown source for a minute or so with an image containing biblical text. The previous year, after the Captain Midnight HBO satellite jamming incident, Congress had passed 18 USC 1367 criminalizing satellite jamming (but not any other types of jamming). The Playboy incident was the first case after the new law was enacted. The same team that solved the Captain Midnight case in about a week went to work on this case also. George Dillon headed the overall investigation and I handled the technical side. In a little over a week, we verified that the jamming came from Pat Robertson’s Christian Broadcasting Network (CBN) in Virginia Beach, VA and through great detective work and initiative by the late J. J. Freeman, Engineer-in-Charge of the FCC’s Norfolk Office at the time, we had a key piece of CBN’s equipment we could soon match with recordings of the jamming signal and proof that the only person working at the time was one Thomas Haney.

FCC, following normal procedure for criminal violations of laws relating to its jurisdiction referred the case for possible prosecution to the appropriate U. S. Attorney - Henry Hudson in the Eastern District of Virginia. Then ... nothing happened.

We found out that Mr. Hudson had 2 dilemmas: first, he had recently lead Attorney General's Commission on Pornography (“Meese Commission”) and had pressured mainstream media outlets from stocking magazines like Playboy; second, at that time Pat Robertson was a viable candidate for the Republican presidential nomination (later won by Bush 41) and was the darling of the Republican right wing establishment. There was probably fear that prosecution of Haney might uncover wrongdoing by Robertson himself. (In retrospect, there was never any evidence that anyone at CBN other than Mr. Haney had any a priori involvement with the jamming, but there was evidence that after the event CBN managers, not necessarily Mr. Robertson, were involved in a coverup and destruction of evidence.)

It was reported to FCC that Mr. Hudson ultimately met with Attorney General Meese to discuss this relatively obscure case and recused himself from it based on some undisclosed conflict relating to Playboy. Meese let Hudson recuse himself and assigned a career prosecutor from the DOJ Criminal Division to prosecute the case successfully and convict Mr. Haney of a felony. I think the FCC team was ultimately happier with the seasoned pro we got than it would have been dealing with Mr. Hudson’s ambivalent staff. However, Congress had recently passed 18 USC 1367 and Mr. Hudson’s ambivalence to congressional intent always surprised me.

(It is ironic that today CBN’s Washington Bureau is located at ... 1919 M St., NW - the FCC’s former headquarters!)

“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.