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FCC: "We do not invite comment" on Certain Topics We Want to Avoid Because They Would Annoy the Cellular Industry

On March 1, FCC released the above public notice which is effectively a notice of inquiry. NY Times wrote about it:

The Federal Communications Commission is reviewing whether or when the police and other government officials can intentionally interrupt cellphone and Internet service to protect public safety. Late Thursday, the commission requested public comment on the issue, which came to widespread attention last August, when Bay Area Rapid Transit in San Francisco shut off cellphone service for three hours in some stations to hinder planned protests there.The transit system interrupted service without notice to the F.C.C. or the California Public Utilities Commission. The interruption was in anticipation of protests in BART stations in response to the fatal shooting of a man in July by a BART police officer. …

Among the issues on which the F.C.C. is seeking comment is whether it even has authority over the issue. The public notice asks for comment on whether the F.C.C. itself has legal authority over shutdowns of wireless service and whether it can pre-empt local, state or federal laws that prohibit or constrain the ability of anyone to interrupt service.

Chairman Genachowski released his own statement:

“Our democracy, our society, and our safety all require communications networks that are available and open. Any interruption of wireless services raises serious legal and policy issues, and must meet a very high bar. The FCC, as the agency with oversight of our communications networks, is committed to preserving their availability and openness, and to harnessing communications technologies to protect the public.”

So far, so good. A legitimate question of concern. But what about the closely related question of disabling illicit cell phone use in prisons that clearly is both illegal and poses urgent threats to public safety? FCC has before it at least 3 petitions dealing with this issue:

• November 2, 2007 - Petition for Declaratory Ruling from CTIA, the Wireless Association (CTIA) regarding the proper use of signal boosters and jammers in Commercial Mobile Radio Services (CMRS). While FCC on January 6, 2010 put out a public notice in Docket 10-4 addressing some of the issues in the CTIA petition dealing with “signal boosters”, it has never acted on there jamming part of the petition.

• August 6, 2009 Petition from S.C. Department of Corrections and 30 other state and regional prison systems seeking to allow cell phone jamming in prisons.

• July 20, 2011 Petition from Global Tel*Link (GTL) on suppressing illicit cell phone use in prison that dealt with both managed access and jamming issues.

FCC has never taken any action on the jamming issues in these petitions - which cover a variety of policy viewpoints. It has never put them out for public comment, it has never rejected them. They all sit in regulatory limbo!

The new PN addresses the issue in passing: On p. 2 it states “ We do not invite comment on practices expressly prohibited by statute or regulation, such as signal jamming.” In fn. 8 which is at the end of the quote sentence it adds, “Because it implicates a distinct set of legal and policy issues, we also do not invite comment on any lawful signal jamming undertaken by the federal government.” So basically FCC is saying “we have ignored this issue for at least since the November 2007 CTIA petition and we darn well will continue to ignore it! Don’t tell use anything on this topic it will confuse us.

Faces of the prison jamming issue
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.

However, FCC then confuses the issue by asking on the bottom of p. 5 “ To what extent do sections 202, 214, 302a, 333, or other sections of the Communications Act circumscribe the ability of government actors to interrupt wireless service”. I believe this is the first time the Commission has ever asked for comment on the meaning of Section 333 - a key controversy in the jamming issue.

CTIA believes that Section 333 prohibit the Commission from ever authorizing any jamming although the Commission has never ruled en banc on any interpretation of the section. The GTL petition shows why this may be inconsistent with both the wording and legislative history of Section 333 and further argues that whatever Section 333 means it applies equally to both FCC and NTIA since Section 305 only exempts the President’s authority of federal spectrum management, delegated to NTIA, from Sections 301 and 303 - not from the rest of Title III. Further, it points out that a contemporaneous jamming statute (dealing only with satellite jamming), 18 USC 1367, explicitly exempts “lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency or of an intelligence agency of the United States” while Section 333 has no such provision. This would imply that either Section 333 does not preclude authorized jamming or that the preclusion was meant to apply to both agencies.

Isn’t it time FCC starts deciding what Section 333 means by considering all aspects of it, not trying to limit comments as in this PN?

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