In the above “landmark enforcement action” FCC issued a Notice of Apparent Liability(NAL), i.e. a fine, against a Chinese jammer company for marketing in the US by way of Internet and some unidentified shipping mechanism, “285 different models” of jammers targeted at cellphones, GPS, Wi-Fi, Bluetooth, etc. The amount of the proposed fine is $34,912,500! However, none of this goes to FCC and it is unlikely that any of it will ever be paid in any case.

Lest you think this is the only Chinese company doing this, your blogger has received dozens of e-mail ads for such devices from a different firm and has routinely forwarded them to FCC/EB. So clearly C.T.S. Technology is not the only offender.

Para. 5 of the new NAL states

“We also again warn U.S. consumers that importing a cell, GPS, or other signal jammingdevice (i.e., purchasing such a device online and having it shipped into the United States via the U.S. mail or other transport or courier service) is unlawful and may subject them to civil and criminal penalties.”

This is followed by a citation to fn. 4 which cites 18 U.S.C. § 1362 and 18 U.S.C. § 1367(a) as well as the 2010 Phonejammer.com FCC NAL. The only problem is that the 2 cited laws have nothing to do with ordering jammers - they deal with actually jamming a federal communications system or a communications satellite - something unlikely with the jammers involved here, but remotely possible. (The cited Phonejammer also has nothing to do with ordering jammers.) So was this section of the NAL sloppy legal work in EB or is there a legal ambiguity under present statutes on the issue of importing jammers for personal use? It is clear that § 333 forbids actual jamming of licensed/authorized transmitters:

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.

The cellular industry prefers to read § 333 as forbidding FCC from ever authorizing any jamming, even in remote prisons. Thus they were successful in stopping FCC from even asking for public comment on the GTL petition on both jamming and “managed access” - notwithstanding the § 1.403 requirement to issue “promptly” a PN asking for comments on such petitions. They even managed to get FCC to draft the Docket 13-111 NPRM to exclude any discussion about what is the scope of § 333 even though this rulemaking is partially responsive to the GTL petition.

The cellular establishment is betting that its interpretation of § 333 will be able to drive all jammers from US territory. However, as we have stated repeatedly, there is a demand for jammers that arises from perceptions of antisocial use of communications. While there are some possible uses of jammers that are beneficial financially to the perpetrator of such use, (e.g. a hotel owner jamming cellphone to force use of expensive hotel room calling services), in practice such use is very rare. Most cellular jamming and GPS jamming is in response to perceptions of antisocial behavior or invasions of privacy. Until the cellphone and GPS industry address those perceptions about the harmony of using their products and the impact on others there will always be consumer demand for jammers. Discussing nonexistent laws that ban consumer ordering of jammers, as in para. 5 of the NAL, or banning all prison jamming use under a specious interpretation of § 333 may feel good to the cellular industry, but are doomed to be ineffective.

Hopefully this NAL might spur Customs and Border Protection to try harder to intercept jammers on their way to the US and might spur carriers like FedEx to ask more questions from shippers like C.T.S. Technology.

UPDATE

Our friends at CommLawBlog, who actually are lawyers when not blogging, also have questioned the legal basis of this NAL stating:

We also can’t help questioning the extent to which C.T.S. actually violated the law.

True, it shipped ten devices to U.S. addresses, but it performed its acts in China, where it may be perfectly legal to ship jammers to U.S. addresses. One unquestionably unlawful step in the transaction was the importation of the ten devices – but FCC staffers, not C.T.S., did that by initiating the transactions and accepting delivery.

Penalizing C.T.S. for the 275 models that it advertised but did not ship to the U.S. is even more tenuous. There is only one Internet; a company cannot easily promote its products on line in some parts of the world but not others. The FCC’s best arguments are probably that (a) some of the advertised products jam wireless frequencies used only in the United States and (b) the company quotes prices in U.S. dollars. True, C.T.S. could refuse to fill U.S. orders and could display a notice on its website stating that policy. But the failure to have the policy and to display the notice may not add up to an actionable violation.

To be clear: C.T.S.’s jammers are disruptive and potentially dangerous. We agree with the FCC that they have no place in the United States. We fully support the FCC’s efforts to keep them out of the country. We just wish the FCC could manage it from a more secure legal platform.

So if the goal is to actually stop the sale and use of such jammers in the USA, not just to posture to the cellular industry, perhaps some more pragmatic actions are needed.

Tags: jammer enforcement, cellphone unintended consequence , cellphones and harmony