Some Possible New Year's Resolutions for the Cellular Industry
As we approach the New Year, here are some constructive suggestions for the cellular industry to think about as New Year’s resolutions. Long time readers will recognize that many have been discussed before in other contexts. Let me state first that I am a long time admirer of the cellular industry, its dynamic growth, and its general record of technical innovation. The cellular industry has also done much to improve public safety through its support for E-911, Amber Alerts, and programs to provide cell phones for domestic violence victims. But this industry has several blind spots as it has accumulated political power and FCC influence comparable to the power formerly held by entities such as the pre-divestiture AT&T, NAB, or the pre-1990 Motorola. sic transit gloria mundi
The purpose of this post is to point out constructively some of these blind spots that appear not to be in basic conflict with the fundamental goals of the industry in the hope that they may reconsider their positions in at least some of these areas. I note that while the main cellular players once were in strong opposition to the bidirectional amplifier/BDA issues now in Docket 10-4, they have moderated their position and appear to be working with responsible BDA manufacturers on technical standards for BDAs that control interference. I hope that similar reexamination is possible in the areas below:
1. Wireless technology innovation. The focus of the cellular industry is that innovation is good, but that the key to innovation is more licensed spectrum for their industry. They are happy with the current level of regulation so everyone should be also. This is clear from CTIA’s comments and reply comments in the Wireless Innovation NOI. They see no need to expedite deliberations of new technology, saying “Simply put, even for good ideas with broad appeal, resolution unfortunately can take a long time notwithstanding the desire of parties to speed the process along”. The fact that the endless drawn out FCC spectrum deliberations stifle capital formation for technical innovators is no concern for mainstream CMRS players with positive cash flow.
But Qualcomm was once a startup in an era when it got its key regulatory decision in 2 years after formation. The CDMA technology that this startup pioneered supplies a major fraction of the 2G market (VZW and Sprint) and is the core of all world’s 3G systems. But this type of disruptive wireless innovation os getting to be impossible due to regulatory stagnation but for the cellular industry and for other spectrum users that compete for cross elastic spectrum. Sadly, the cellular industry is firm with the status quo here.
Wa - harmony (Japanese)
What is the industry doing about this? Are they trying to increase sidetone levels so people don’t shout when using cell phones? Are they trying to make it easier to switch the ringer to a vibrate only/ “manners mode” as in Japan where all carriers have voluntarily agreed that a press of the “#” key toggles the unit to and from vibrate only mode? Are they researching ways for theaters and restaurants where people really want a semblance of quiet to use Bluetooth or a similar link to switch phones automatically to vibrate only? Kudos to Motorola for inviting Dr. Norman to talk on this issue. How much of this type of dialogue is going on now in the industry?
UPDATE
Suggested reading for cellular industry managers: “Wild Night at Philharmonic After Phone Interruption” describing a January 10 incident “in one of the quietest parts of the final movement of a gorgeous New York Philharmonic performance of Mahler's Ninth”.
3. Cell phones use in vehicles. Technology should improve life, not threaten it. In September 2011 NTSB recommended a ban on cell phone use in commercial vehicles (trucks and buses) after investigation of a Kentucky crash that killed 11 people. The industry was silent except for an e-mail message to your blogger saying “The wireless industry … does not oppose legislation that restricts the use of wireless communication by drivers." (This quote was never printed or posted anywhere else as far as can be determined.)
Then in December 2011 NTSB recommended to “ban the nonemergency use of portable electronic devices (other than those designed to support the driving task) for all drivers”. This time CTIA was no longer silent, saying “ As far as talking on wireless devices while driving, we defer to state and local lawmakers and their constituents as to what they believe are the most appropriate laws where they live.” This is not leadership, this is non opposition. If I was involved in a product or service that resulted in death on a regular basis as an unintended byproduct I would be a lot more concerned. Especially since talking in cars is not the main use of cell phones.
The NTSB recommendations are not perfect. For example they do not deal with new technology since all NTSB can do is investigate past accidents. Why doesn’t the industry do something more proactive like start a standards committee, or encourage DOT to start one, that can certify which technologies are safe enough for use in vehicles?
(But kudos to Sprint for breaking with the crowd and being a cosponsor of Oprah’s Oprah’s No Phone Zone website and its “No Phone Zone Pledge”.)
4. RF safety. Most of the cellular industry thinks that the public should be happy with their statements that cellphones meet FCC standards and are therefore safe. A decade ago, the industry fought FCC over the proposal to stop hiding SAR ratings for cell phone models in an obscure unmanageable database. As a previous blog post here has as a headline, “CTIA: Maybe Your RF Safety PR Strategy Isn't Working?” The past year has seen CTIA boycott San Francisco and got to court (with an initial partial victory) over a local ordinance requiring point of sale disclosure of SAR data. (The same data that Verizon Wireless openly discloses on their website for models they sell.)
Perhaps the industry does not want you to know about the secret of OETB65C. Stalin once said, “The people who cast the votes decide nothing. The people who count the votes decide everything.” So the SAR standards for cellphones in Sections 2.1091 and 2.1093 were subject to a notice and comment rulemaking that made 1.6 W/kg the SAR limit. But how is that really determined? In practice through the procedures of OETB65C which gives the manufacturers a lot of leeway as to what spacing from the simulated body they can use for measurements in the body, even if they do not provide a holder that would implement that distance and even if they don’t warn users not to put the device in their pocket. Both Time magazine and your blogger have written about this issue, but there seems denial at both FCC and industry on the issue.
There is no proof that cell phone radiation is dangerous. Indeed, some of the brain cancer claims made as clearly outrageous. (Considering there is no proof that cell phone radiation causes any pathology, why the focus on brain cancer - except that it is a very scary diagnosis.) But the web site of CTIA’s French counterpart is a lot more pragmatic than US industry sites on the risks and unknowns as well as the fact that some users may want to take extra precautions. The Swiss counterpart of EPA also has a site with pragmatic and practical information lacking in industry and government sites in the US.
This month’s IEEE Spectrum reports on a UK design contest for power pylons sponsored by a major electric utility, a national government agency, and the architect’s professional society, which resulted in several novel designs including the one above. Why can’t the US cellular industry help sponsor a similar contest for bold new ideas in base station design? The cost would be small compared to what they are spending on they lobbying war with the broadcasters as present.
6. “Spectrum scoring” or “How to count to 500”. The cellular industry originally demanded 800 MHz of new spectrum for CMRS although they are now accepting of the 500MHz NBP goal. But what spectrum counts towards the 500 MHz goal? Does every single Hertz have to be only in spectrum that meets standards developed in Europe to be manufactured in China? There are many types of wireless innovation other than making iPhone and iPad clones. Some of them involve using spectrum more efficiently. The focus on meeting international standards means that only innovators who want to plow through the complex international standards process can get market access in the US. Actions like PacTel’s decision to go with CDMA in the 1980s apparently is beyond consideration now.
While your blogger has no views against giving more spectrum to CMRS, many of us think the 500 MHz goal is impossible under the conditions for “counting” that the cellular industry has implicitly set with factors like nationwide 24/7 1000 ms/s access and in 3GPP specified bands. Although LTE systems can use unpaired spectrum, most of the spectrum on their wish list appears to be paired and symmetric. If FCC and NTIA come up with spectrum that doesn’t that meets all these criteria, does it “count”?
But here is another viewpoint: Some niche markets compete for spectrum at FCC that is the same or comparable spectrum to what the cellular industry seeks. For example the medical community is clearly seeking more spectrum for short range applications. It is clear to many of us, even some in FCC, that the existing use of wireless microphones in UHF TV band “white space” is not sustainable in the long term except perhaps for uses involving only a few microphones like small churches and conference rooms - not theaters and major concerts. This is because of cellular industry pressure for UHF incentives auctions that will eventually tie up the same spectrum.
In the past, there was no alternative for the CMRS industry to serve these and other wireless niches. However, with the spectrum leasing provisions of Subpart X of Part 1 and today’s femtocell technology it is possible for cellular carriers to lease short range spectrum to users with other than standards cellular modulations/physical layers and without connection to the public network. A good example is the Qualcomm FlashLinq™ technology that will allow users to connect directly to each other with non standards modulations on spectrum leased from and under the control of a CMRS carrier. Maybe the specifics of FlashLinq™ are not perfect for the CMRS community, but it clearly shows the feasibility of new types of spectrum use in CMRS spectrum. Even if it is not a billion dollar market, its ability to “soak up” other spectrum uses that would otherwise compete for spectrum might make it attractive to openminded CMRS firms.
Until recently, the largest prepaid operator, TracFone, allowed users to activate a phone bought anonymously and “skip” the step to report name and address. However, the option of buying with cash bagfuls of prepaid phones at Walmart, activating them over the web with a false name and address, and selling them for criminal use is still quite real. Isn’t it odd that we more concerned about over-the-counter sales of Sudafed and Plan B than we are about bagfuls of anonymous cellphones?
Many countries require some identification before prepaid phones can be activated. This is a complex issue both because of the size of the market and the appeal of prepaid phones to market sectors who need them for legitimate economic and safety-related reasons but, as we know from the voter ID controversy, may lack or be unwilling to identify themselves in the standard ways. While I sincerely hope we never have a cellphone-related IED attack in this country, such an event would force a PATRIOT Act-like knee jerk reaction that could be more draconian that a deliberate process now to address the situation.
UPDATE
For those of you who wonder about the temerity of an industry outsider raising such questions about the cellular industry, let me point out the Verizon $2 “payment fee“/“convenience charge” kerfuffle that started just as this blog was first posted and ended a day later. Clearly, VZW, the largest cellular carrier in the US was out of touch with its customers on this issue and had to beat a hasty retreat. Perhaps the industry is also out of touch on the above issues?
UPDATE 2
On 1/7/12 CNN posted an article by bestselling author Bob Greene entitled “Is 2012 the year to hang up the phone?”
Story highlights:
There is growing chorus of officials, employers urging less cell phone useHe says NTSB warns against use in cars; bosses pushing back on personal calls at workHe says cell-phone distractions even affect surgeons and nurses; cut productivityIt may be impossible to take people's freedom of cell use away from them
So your blogger is not the only one seeing cell phone use backlash. Perhaps if the industry was more sensitive to the concerns listed above it might be in their own interest?
FCC Starts Jammer Enforcement on a Large Scale
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.
Petition Filed to Stop Contraband Cellphone Use in Prisons
The topic of illicit cellphone use in prisons has been a recurring topic here even though there has been no explicit FCC action on the topic other than a workshop almost a year ago. Indeed, while FCC waited over 2 years to ask for any public comment on CTIA’s November 2, 2007 petition on cellphone jamming and customer-owned bidirectional amplifiers, it has so far ignored all the jamming issues in that petition - both prison-related and otherwise. (The Docket 10-4 public notice seeking comment on this and other petitions avoids all mention of jamming issues of any type and focuses solely on the amplifier section of the petition.) But FCC is being somewhat even handed here: They have ignored both CTIA’s attempt to have all jammers declared illegal and 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. Except for the above mentioned workshop, FCC has taken no visible action to control cell phone use in prisons. (Of course, being caught between the powerful CTIA and state governments is not a desirable place to be.)
Carl Lackl, Jr. (l) a Baltimore witness murdered as a result of a prison cell phone call.
Capt. Robert Johnson (r) South Carolina Department of Corrections, shot 6 times
at his home as a result of a prison cell phone call.
The GTL petition addresses both jamming and “managed access” - interception and blocking of calls based on their location and possibly with a “green list” of cellphones that may make calls at or near prison property. The petition states,
“Managed access systems are generally favorably viewed, yet they are too costly for most deployments and complicated to authorize given the need to negotiate spectrum sublease agreements with multiple wireless telecommunications carriers. This petition presents a proposal to amend the Commission’s rules to streamline the spectrum lease process so that spectrum lease agreements, when needed, are obtained in a shorter period of time.”
It also seeks to clarify the obligations of a managed access system with respect to E-911 services and involve the local PSAP operator in determining what is appropriate for a given area.
Finally it asks the Commission to finally act on determining whether CTIA’s interpretation of Section 333 (that the Commission does not have the authority to permit jamming by non-federal entities) is consistent with the statute. It argues that FCC should consider the legislative history of Section 333 as well as the plain reading of the Communications Act that whatever Section 333 means it must apply equally to both FCC and NTIA since it does not differentiate between the two agencies. (Section 305 exempts the President and NTIA from Sections 301 and 303, but not from the rest of the Communications Act. Also, Section 333’s contemporary on satellite jamming, 18 USC 1367, specifically excludes “any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency or of an intelligence agency of the United States” while Section 333 is silent on this point.)
Let’s hope that FCC finds this petition in its inbox and takes some action on this important issue that has been ignored for so long. Sources in FCC report that there is no centralized tracking of petitions that are received but have not been put out for public notice. So even the 8th Floor may not be aware of this petition and its issues.
UPDATE
On 9/6 CellAntenna Corporation filed a related petition with FCC. So FCC now has 3 petitions dealing with various aspects of contraband cellphone use in prisons, ALL without any action.
The CellAntenna petition would “require CMRS carriers to do their part and suspend service to any wireless device reported to be operating in a correctional facility within one hour after receipt of notice from a Warden”. Of course, this approach could allow any smuggled cellphone to be used at least once and would be a boon to contraband smugglers.
So isn’t it time for FCC to at least put some of these petitions on public notice for comment?
Recent EB Action Shows Slowness of Title III Technical Enforcement
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.
NTIA Prison Jamming Report and the Meaning of §333: Why is NTIA So Sure that §333 Restricts FCC but not Them?
[Related NYTimes 1/3/11 article]
About a year ago the conference report on the FY 2010 Consolidated Appropriations Act contained language asking NTIA to study the prison cell phone jamming issue:
“To help State and Federal correctional authorities address this growing national problem, the conferees direct the National Telecommunications and Information Administration at the Department of Commerce, in coordination with the Federal Communications Commission, the Federal Bureau of Prisons and the National Institute of Justice, to develop a plan to investigate and evaluate how wireless jamming, detection and other technologies might be utilized for law enforcement and corrections applications in Federal and State prison facilities. The conferees strongly urge the NTIA, in coordination with the FCC, to investigate and evaluate detection or other technologies that do not pose a risk of negatively affecting commercial wireless and public safety services in areas surrounding prisons” -- H.Rept. 111-366 FY 2010 Consolidated Appropriations Act, Division B -Commerce, Justice, Science, & Related Agencies statement of managers, p. 17-18
It appears that the Congress instructed NTIA to “investigate and evaluate how wireless jamming, detection and other technologies might be utilized” in prisons, but NTIA seemed captivated with the idea of parsing §333 for its meaning rather than focusing on the requested technical issues.
Here are some of NTIA’s legal findings in this report that was supposed to focus on technical issues:
- “Jamming interferes with 9-1-1 and authorized calls and violates the Communications Act of 1934 when performed by non-Federal officials.” - p. 1
- “Currently, the operation by non-Federal entities of transmitters designed to jam or block wireless communications violates the Communications Act of 1934, as amended. (The report then cites “47 U.S.C. § 301, 302a, 333. The FCC had reiterated this fact. See Sale or Use of Transmitters Designed to Prevent, Jam or Interfere with Cell Phone Communications is Prohibited in the United States, Public Notice, DA-05-1776, June 27, 2005 ...”) - p. 13
- “The Communications Act of 1934 prohibits non-Federal entities from intentionally interfering with radio signals. Many of the respondents reaffirm this as well. For example, the wireless industry expresses their concerns over deploying a device that violates the Communications Act of 1934.” - p. 16
- “The use of jammers by State or local prison officials is a violation of the Communications Act of 1934, and hence illegal. The FCC has denied previous requests to operate cell phone jammers at State correctional facilities.” - p. 18
- “The use of jammers by State or local prison officials is a violation of the Communications Act of 1934, and hence illegal. Jamming cell signals may be effective where legal in Federal applications ...” - p. 37
- (Jamming is) “Illegal for non-Federal entities; pending legislation for case-by- case jamming” - p. 39
- (Jamming) “Violates the Communications Act of 1934 when performed by non-Federal officials” - p. 40
Despite these repeated statements, even the 2005 public notice does not say FCC lacks the jurisdiction to authorize jamming, but simply FCC hasn’t and therefore it is illegal at present. (“The Communications Act of 1934, as amended, and the FCC rules prohibit the manufacture, importation, marketing, sale or operation of these devices within the United States”). NTIA seems to be trying very hard to espouse the CTIA viewpoint:
“With limited exceptions for certain federal agencies, signal jamming equipment is illegal due to Section 333 of the Communications Act because of those problems.”
So let’s look at this viewpoint. Here is §333:
It was passed in 1990, not 1934, to criminalize certain jamming behavior in cases where the perpetrator had a valid radio license and thus could not be prosecuted under §301 - an example was the 1988 air traffic control jamming of numerous Eastern Airline flights by unionized US Air pilots during a labor dispute. Note that the legislative history of §333 does not mention anything about limiting the jurisdiction of either FCC or NTIA - it focuses on criminalizing unauthorized jamming such as the EAL/USAir jamming.
So why does NTIA and CTIA think it applies to anything FCC might do but has not impact on NTIA? Note that it is in Title III of the Communications Act, not in a law dealing with only FCC. Note that NTIA derives it own authority from this very same Title III: §305 gives the President parallel authority with respect to FCC saying:
Radio stations belonging to and operated by the United States shall not be subject to the provisions of sections 301 and 303 of this title.
Most of the spectrum powers of the Commission come from §303, so clearly federal spectrum users are exempt from such provisions. Note also that §333 is not the only law dealing with jamming. In 1986, only 4 years earlier, Congress passed 18 USC 1367 in the aftermath of the Captain Midnight/HBO satellite jamming incident recently discussed here :
Note the language of 18 USC 1367(b) clearly exempting “any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency or of an intelligence agency of the United States” from its provisions. No such provision is in §333. So if §333 really means that FCC does not have the jurisdiction to authorize jamming, the obvious implication is that whatever §333 means it applies equally to FCC and NTIA absent any language differentiating them such as contained in §305 or 18 USC 1367.
Furthermore, if the 5 commissioners really felt that they lacked the jurisdiction to authorize jamming, they would have dismissed the petition filed by the South Carolina Department of Corrections and 30 other state correctional agencies in July/August 2009 under the provisions of 47 CFR 1.401(e) rather than letting it gather dust for almost a year and a half. It is truly bizarre that a petition from 30+ state public safety agencies has not been put out for public comment or dismissed after this much time!
But getting back to the technical aspects of the report, NTIA states”
Due to the limited deployment of the jammer transmitter at the Federal facility, NTIA could not draw conclusions from the field measurements assessing the potential of aggregate interference to in-band receivers if multiple jammer transmitters were operated throughout the facility. That is, NTIA could not determine the effects of the jammer on cellular and PCS devices outside the prison facility. - p. 9
Meaning the report is not really very conclusive on a key issue.
Let’s get to the physics of the issue: Both jamming and “managed access” will do their function if their signals are stronger than the signals from the cell site in that area. If in a given location within the prison the managed access or jamming signal is weaker than the cellular signal, then neither can prevent illicit calls by inmates. If at a given accessible by the public location outside the prison the jamming or managed access signal is greater than the carrier’s signal in a given band, then legitimate cell phone calls will be impacted. True in the case of 911 calls they will not be impacted, but all other calls will be impacted unless the cell phones are registered in the managed access system.
This explains the anecdote by FCC’s Adm. Barnett at the 9/30/10 forum on this issue that managed access worked so well at a demonstration that his secretary could not reach him outside the prison. Thus designing an antenna system for distributing the managed access or jamming signal so that it is greater than the cell base station signal everywhere inside the prison and weaker everywhere accessible to the public is an issue common to both systems. Without this careful RF distribution both systems have the potential of spottiness inside the prison and denial of service to the general public outside - although managed access does protect 911 in both cases. It is a problem that is much easier for rural prisons with large buffer areas around them and probably impossible for urban facilities like the Arlington Country Jail which is located in a high rise in an office area. Thus it is odd that Table 7-1 of the NTIA report describes jamming as requiring “(e)xtensive testing prior to implementation” - both system will need comparable testing to verify effectiveness inside prison and lack of impact outside prisons.
The same Table 7-1, on the other hand says about the cost implications of managed access: “Depends on coverage, frequency bands, etc; can be at no-cost to prison authority or vary based on complexity of site; infrastructure costs”. So why is managed access possibly “free”? Most states have contract with high price OSPs (operator service providers) for prison pay phones who charge high rates for inmates’ calls - the original “captive audience”. In the Mississippi test the OSP is paying for he managed access system because it “eliminates competition” resulting in higher revenues although further rate hikes for calls were being considered..
While managed access might appear to NTIA to be “free”, recidivism is a major issue in our prison systems and has a huge impact on society resulting in both high crime rates and high incarceration rates. Indeed, the societal cost of recidivism probably dwarfs the sums involved in this cell phone issue. Studies have shown that increased inmate contact with family can decrease recidivism but inmates and their families and in a poor position to bear the cost of prison payphone calling charges much higher than the rest of the population pays. South Carolina has low calling charges by order of the state legislature where the measure had bipartisan support. The federal Bureau of Prisons also has low calling charges for its inmates. So accounting for the cost of managed access purely by looking at out of pocket costs that are zero because prison OSPs pay for it out of “monopoly rents” is myopic. Indeed, prison OSPs might well want to pay for jamming systems if they were cheaper than managed access and allowed by FCC. (A high FCC official was surprised recently when I mentioned that these prison OSPs were actually subject to FCC Title II regulation and that FCC could reinstate price regulation in this special case where deregulation has failed. Decreasing the exorbitant charges of prison OSPs would probably decrease the illicit cell phone problem since they would then be less attractive to inmates interested in only family contact.)
The real issue here is that the cellular industry is rightly very concerned about jammers in nonprison contexts. There is recurring interest among local law enforcement to use jamming for tactical reasons. Jamming in non-law enforcement contexts is a recurring problem. CTIA’s preferred interpretation of §333 neatly solves both problems. But the continued impasse over prisons is endangering lives. Why can’t we draw a bright line between the prison case where lives are at stake now and these other cases? How many more innocent people have to die before we allow prison authorities the flexibility to protect their staff and the public subject to strict, responsible guidelines that safeguard public communications systems.
Carl Lackl, Jr. (l) a Baltimore witness murdered as a result of a prison cell phone call.
Capt. Robert Johnson (r) South Carolina Department of Corrections, shot 6 times
at his home as a result of a prison cell phone call.
Cell Phone Jamming in Prisons: Something France and UK Can Both Agree On
Students of history know that France and the UK have rarely agreed on anything. However, a recent visit to the 2 countries confirmed that jamming cell phones in prisons is one thing they actually do agree on, although they reached this consensus independently.
The above French text is from a 2002 law approved by the French Parliament and signed by President Chirac. It permits jamming in both within the walls of prisons (l'enceinte des établissements pénitentiaires) and also in performance halls (les salles de spectacles) such as concert halls and theaters. (Note that no responsible parties in the US advocate permitting cell phone jamming in anything comparable to les salles de spectacles.)
While there is no comparable law or regulation in the UK, a well placed industry source confirmed that Ofcom, the UK regulator, recently helped a number of UK government departments and mobile operators reach agreement on this, resulting in a confidential MoU between them paves the way for jammers in prisons.
Now it is puzzling why UK and French cellular operators are willing to help their governments solve the real public safety crisis of cell phones in prisons while the US cellular operators cling to their interpretation of 47 USC 333 that FCC does not have jurisdiction to do so. At the recent FCC public forum on the issue, all speakers from other than the cellular industry advocated allowing both jamming and “managed access”.
Question for those who advocate the above reading of Section 333: Section 333 mentions neither FCC nor NTIA (or the President who has delegated his Section 305 authority to NTIA). Why is it obvious that NTIA can authorize jamming and FCC can’t? The legislative history of this section is very different than this interpretation of restricting FCC jurisdiction.
Note that Section 303 explicitly exempts NTIA from its terms. If Congress meant that Section 333 didn’t apply to NTIA, why didn’t it say so?
§ 333. Willful or malicious interference
No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government.
Comments on NTIA Prison Jamming NOI
Last Friday was the due date for comments on NTIA’s NOI on the use of jammers to deny inmates cellphone use in prisons. As discussed earlier, this NOI resulted from Congressional “guidance” in a report on budget legislation. No doubt this was a delaying tactic initiated by the cellular industry, but at least it helps “kick the ball down the road” since FCC has successfully ducked the issue to date. Indeed, while it is widely thought that FCC has ruled that Section 333 of the Comm Act prevents FCC from authorizing any jamming, the Commission has never made such a finding. No matter how many times NTIA and CTIA want to repeat this allegation, they have been unable to document it.
Yes, there are staff actions taken under delegated authority that in passing state that the Commission is restricted by Section 333. But these have never been ratified by the Commission or any case law. A filing last year by the South Carolina Department of Corrections gives an alternative explanation of the legislative history of Section 333 and options for authorizing cell phone jamming in prisons under present legislation. CTIA’s silence on the issue is deafening.
In the NTIA NOI CTIA started its comments dramatically:
Between May 17 and May 20, 2010, there was a significant interference event in downtown Philadelphia that disrupted commercial wireless service and GPS signals and involved the joint efforts of the Coast Guard, the FCC, the NCS, and carriers. Due to inference from a jammer, GPS equipment failed to work and navigation aids (including those used by the Coast Guard and potentially the FAA) and timing synchronization based on GPS at wireless base stations were disrupted. Numerous CMRS base station sites completely lost the ability to make voice and data communications work, resulting in excessive blocked and dropped calls, and wireless providers and first responders relying upon GPS for 911 calls‟ location information were adversely affected. This was due to a jammer.
Terrible! But what does this have to do with the use of jamming in isolated prisons under either pending legislation or the South Carolina petition that FCC has never even put out for public comment. This episode appears to be related to the FCC’s previously reported indifference to the marketing of GPS jammers where it took 23 months to close a case of marketing an obviously illegal device. Perhaps rather than using this as “evidence” that any prison jamming will be harmful, CTIA should press FCC why the FCC Enforcement Bureau was so dilatory in this GPS jammer case.
The CTIA comments repeat the usual allegations “that ‘overjamming’ is an inevitable outcome of the operation of jamming equipment in prisons”( p.20). They quote NTIA as follows:
The jammer emissions were transmitted entirely indoors. The targeted jamming zone was the interior of a two-floor reinforced cinderblock structure measuring 30 meters (m) long by 8 m wide. Jammer emissions were measured both indoors and outdoors, that is, both inside and outside the targeted jamming zone. . . . For the outdoor locations where jamming was not intended, the results showed that jammer power was measurable at distances up to 127 m from the building.
Was the “measurable” jammer power harmful interference? Was the 127m distance from the building an area accessible to the general public? Would anyone outside a maximum security prison with a large spatial buffer have been impacted by this jamming?
Finally, CTIA put great faith in “managed access”
Under managed access, when a call is made from a CMRS device located on prison grounds, the device recognizes the managed access system as the strongest signal, which enables the system to obtain information such as the device serial number, SIM card, or both. The managed access system would cross-reference this information against a database that indicates whether the device is unauthorized. If the system determines that the device is unauthorized, the managed access system does not permit the call to be completed and will either transmit a voice message to the caller, or direct the call to a designated official point of contact. Calls made from authorized devices will go through as intended.
Works like magic! Now, CTIA, here are some practical questions from the MSS comments to NTIA on the managed access alternative that you you have been dodging for a while:
- Who will pay for this managed access system you prefer?
- If it handles real legitimate revenue calls for the carrier should they pay at least part of the cost of the system?
- Are you advocating that FCC require all cellular carriers - not just the major carriers who control CTIA policy - to participate in managed access?
- Will CTIA support a regulation that forbids cellular carriers from implementing any technical change in their that will impact managed access until all the managed access systems are updated to cope with it? (Old timers will note that this would be similar to 1980s era Open Network Architecture/ONA of BOCs that they despised. This is ironic since the new AT&T is one of CTIA major members and is one of those BOCs of that era.)
CTIA repeatedly uses the word “overjamming” in its comments. A Google search shows no other use by anyone of such a phrase in anything resembling this context. However, it revealed a European music group called Overjam that has several YouTube videos. So in honor of CTIA’s recent contribution to spectrum jargon, here is a video from Overjam. Maybe CTIA can play it at the inevitable ex parte meetings on this topic on the 8th Floor:
Overjam Video
The cellular industry has made great contributions to public safety in many areas. But the epidemic of cell phone use in prisons and the horrendous consequences are an unintended consequence of ubiquitous small cell phones. Rather than respond with a FUD attack (fear, uncertainty, and doubt) on the jamming alternative, why doesn’t the cellular industry work more effectively with the corrections agencies to implement solutions that are both affordable and practical. Why doesn’t FCC get off the fence and pressure the cellular industry to make more progress in this area rather than focus on FUD.
UPDATE
Your blogger’s comments to NTIA have now been posted.
NTIA NOI on Prison Cell Phone Use
Wednesday’s Federal Register contained an NOI from NTIA entitled “Preventing Contraband Cell Phone Use in Prisons”. FCC has been sitting on without any visible action a related Petition for Rulemaking from 30+ state corrections agencies that was filed on 8/6/09. Oddly, the NTIA NOI never mentions this petition either.
NTIA’s action here come from 12/09 language in the Conference Report to the Department of Commerce FY 2010 Appropriations (p. 619) tasking NTIA, in coordination with the FCC, BOP, and NIJ, to develop a plan to investigate and evaluate how wireless jamming, detection, and other technologies might be utilized for law enforcement and corrections applications.
Footballs modified to serve as carriers for cell phones and thrown over a prison fence
The NOI identified “three categories of contraband cell phone intervention: jamming, managed network access, and detection.”
On jamming, the NOI cites the opposition of CTIA and APCO and says “Stating that it did not have the authority to permit such jamming, the FCC has denied the petitions.” In reality, the whole Commission has never taken any such action or even spoken on the topic. There have been staff actions, such as those cited in the NOI, where the staff indicated a lack of authority and it is pretty clear that no present FCC rule authorizes jamming. But neither NTIA nor CTIA have ever cited an action by the whole Commission that interprets §333 as forbidding the Commission from ever authorizing jamming in a rulemaking. The 8/09 Petition reviews the legislative history of §333 and argues that CTIA’s interpretation in incorrect. While this petition has never been even put on public notice for formal comment, it is on file in Docket 09-30 and the cellular establishment has never publicly addressed it contents - no doubt preferring smoke filled rooms on the Hill and off the record discussion with FCC and NTIA officials (clearly permissible under ex parte rules in this case.)
Packages with cell phones that didn’t make it over the prison fence and got trapped in razor wire
Here are the questions NTIA asks:
Are these characterizations accurate and complete?
Are there technologies other than these categories, and if so, how do they work?
What approaches can be taken to jam within irregular structures such as prisons, within indoor and outdoor areas and within rural versus urban settings?
What specific types of managed access and detection techniques are available?
What risk does each system pose to legitimate cell phone use by the general public outside the prison?
What risk does each system pose to public safety and government use of spectrum?
How can any of the foregoing risks be mitigated or eliminated?
What are the benefits and drawbacks of implementing these techniques?
Are certain systems more suitable for certain prison environments or locations?
To what extent does the installation of each system require a customized approach for each prison?
How disruptive is the installation process?
What approaches can be used in the implementation of systems employing detection techniques?
How does each system provide for completion of critical calls or radio communications such as those from public safety officers (including use of handheld two-way radios) or 911?
What ability does each of these technologies possess for upgrades to include new frequency bands, technologies, modulation techniques, etc. as they are introduced into the marketplace?
How quickly can they be upgraded?
NTIA does not ask about how these systems should be paid for. As your blogger’s client, Soth Carolina Department of Corrections indicate in a 10/09 letter to FCC , approaches like managed access perform functions that both deny service to contraband cellphones and facilitate legitimate calls. Should the cellular carriers therefore pay at least part of the system cost? The letter also points out that managed access will only work if the carriers have an obligation to notify whoever operates them of any pending change to their air interface that could impact their operation and delay implementation until the access system is modified. While AT&T and BOCs had analogous wireline obligations in the 1980s, does the cellular industry want that today?
The NOI states
.The longstanding radio spectrum regulation principle, embodied in the Communications Act of 1934, is to preclude harmful interference and not to block access to or receipt of information transmitted wirelessly. In addition to producing emissions in specific bands and within specific areas to deny service,jamming systems also produce unwanted signals outside of their intended operating bands and are not naturally confined to a prescribed area. These signals have the potential to produce interference to other radio services operating in numerous frequency bands (including Federal Government operations) and outside of the prison facility. (emphasis added)
NTIA - why are jammers different than any other radio transmitter in this respect? Don’t all transmitters produce “unwanted signals outside of their intended operating bands”? Why do other types of systems have emissions that “are confined to a defined area’”, thus going certain distances and then magically stopping? Why won’t the basic framework NTIA itself has adopted to protect GPS systems in §8.3.28 of the NTIA “Red Book” work for cell phones jammers? Do GPS signals have fundamentally different physics?
Anonymous Prepaid Cellphones in the News - Again
Will FCC and Industry Ever Address the Issue?
SpectrumTalk readers may recall that the issue of anonymous prepaid cellphones has been a recurring one. While prepaid operators generally try to obtain user registration information, we have shown that Tracfone gives you the option to “skip this step” and not bother to make up a false name - very convenient to certain demographics. We have also reported that Japan, Greece, and Mexico prohibit anonymous prepaid phones but allow prepaid phones with reasonable documentation. Now let’s add Singapore to the list. During my recent trip there I bought a prepaid SIM for my GSM phone and was subject to a reasonable inquiry of producing my passport so that the name page could be copied.
Prepaid phones are both a profitable business and a useful service in general. But shouldn’t the industry and FCC start asking questions about why anonymous prepaid service is such a good idea? Section 301of the Communications Act requires a license for transmitter use. 47 C.F.R. 22.3(b) says that subscribers can effectively use the operator’s Tittle III license. Should this really apply if the operators have no idea who the subscribers are? Should FCC ask Tracfone how their users could be in compliance with §22.3 if Tracfone has no idea who they are? (A side comment on §22.3: a careful reading shows it is ambiguous whether it applies to all cellular services or just those in Part 22.)
But just banning all prepaid phones is a poor idea because they are especially useful to the lower tiers of society and important for both their safety and to enable access to employment and social services. Any mandatory registration system for prepaid phones has to be flexible enough to balance between legitimate public safety issues and maintaining connectivity for all legitimate users.
But isn’t it time that FCC and industry start a dialogue
on reasonable ways to stop the current flood of anonymous prepaid phones
and their impact on crime and terrorism?
UPDATE
Related story in ars technica
Includes this observation:
The Canadian government funded a study (PDF) on this question back in 2006. A team from Simon Fraser University looked at 24 OECD countries and found that nine of them require mobile operators to collect registration data for prepaid phone users.
"In all cases, the rationale for a prepaid registration requirement was to improve efficiency of law enforcement and national security activities," said the report.
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