Some Spectrum Policy Issues Are Not Economic But Really Life or Death Ones
But the statement was a learning experience. Much of what FCC does is really "economic regulation":
- it affects how much income licensees and regulated entities such as carriers can earn,
- it affects the division of spectrum among industries which indirectly affects their profitability,
- it deals with who can own certain types of licenses and how many of those licenses they can own,
- it affect inter service interference which also affect profitability, etc.
For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the "Federal Communications Commission", which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.
So safety issues should be deep in FCC's DNA. The creation of the Public Safety and Homeland Security Bureau on 9/25/2006 was a positive attempt to get public safety issues away from the main industry focused bureaus of FCC that in many respects like most regulators were captured to some degree by the commercial entities they regulate. Hence WTB was really unable to resolve the long standing NEXTEL/public safety interference issue of the late 1990s and it was only resolved when Nextel came in with a "deal" that public safety entities were willing to agree with - whether or not it was really in the public interest.
(There is an oral tradition in the FCC staff that an engineer of WTB's predecessor was concerned about the possibility of such interference and pressed for protection of public safety as a condition of the original Nextel waiver that permitted their Part 90 licenses to be used for cellular-like technology. However, this was overruled by higher level managers who were focused on the issue of increasing competition in the cellular industry. Hopefully with the creation of PSHSB such decisions will not be so one-sided in favor of commercial interests.)
But there are a few ongoing spectrum policy issues that are really related to life or death issues and that the Commission is not resolving expeditiously. Here are some of them:
Texting & driving. CDC states "Each day in the United States, over 8 people are killed and 1,161 injured in crashes that are reported to involve a distracted driver." While FCC has a webpage entitled "The Dangers of Texting While Driving" and another entitled "Distracted Driving", what is it really doing to decrease the number of deaths associated with this use of FCC licensed technology? Is FCC really paying more attention to CTIA's desires on this issue than on the overall public safety issue? How often are senior FCC officials talking about the death toll resulting from this misuse of radio technology? FCC held a "Distracted Driving Technology Showcase" in April 2013. What has been the progress of implementation of such technology on either a voluntary or mandatory basis? NYTimes recently had a discussion on this issue, but is FCC actually doing anything?
Capt. Robert Johnson (Ret.) SCDC, shot 6 times
as a result of an order given over a contraband
cellphone, with Gov. Haley & Comm. Pai.
Use of contraband cellphones in prisons. This is the subject of Docket 13-111. Note the first 2 digits are "13" indicating that this NPRM was issued in 2013, actually 3 years ago this week. But this NPRM was in turn based in part on a petition filed by the South Carolina Department of Corrections in July 2009 which was never even put out for public comment. (This explains why the NPRM cryptically refers to the SCDC petition by the mysterious code "PRM09WT" rather than the usual RM number.) But the CTIA-favored approach of "managed access" and continuing the absolute prohibition of any jamming by nonfederal users is basing all progress on a quixotic technology. Meanwhile real people die as a result of crimes ordered by incarcerated criminals. Can't FCC give the cellular industry a date certain to show whether managed access under their preferred approach and conditions is an adequate solution for this life or death issue?
Aviation Tower Marking and Lighting Enforcement: One of the more bizarre statements in the nearly $1M study FCC ordered to justify downsizing field enforcement that has never been formally released (but a leaked version was first made available on this blog) is shown below:
Since tower inspection compliance is good, it can be cut back significantly the consultants reason. But tower lighting and marking issues are different than most other FCC compliance issues like frequency and power regulation. As the Coinjock NC helicopter crash incident dramatically showed major screwup can result in multiple deaths. This different than interference which is typical of most Title III technical violations.
Instrument Landing System (ILS)
FM Pirate Interference to Aircraft Navigation: As we have written previously, the FAA's Instrument Landing System has its "localizer" (left/right determination) signal just above the FM broadcast band. ILS receivers have some sensitivity to interference resulting from overloads of two signals that have a certain relationship to the ILS channel used at a given airport and another local FM station. In normal FM licensing this is considered and the threatening frequency is not allowed near an airport. But illegal FM stations do not go through normal licensing! And if the mathematical relationship with another FM station and the ILS frequency is correct, not much power is needed to create interference if the other FM station has a strong signal near the airport. So downsizing enforcement without leaving an alternative mechanism to address this issue is an invitation to aviation safety issues.
Public Safety Interoperability: The January 13, 1982 Air Florida crash in the Potomac River was the beginning of a national dialogue on public safety interoperability. The 9/11 tragedy was another milestone.
There have been improvements since 1982, but has it really been adequate. Now there are a lot of agencies involved in this area and Congress has had a key role in starting FirstNet. But FirstNet is not going to make a big dent in the basic problem for this is what its website says:
FirstNet will enhance public safety communications by delivering mission-critical data and applications that augment the voice capabilities of today’s land mobile radio (LMR) networksWhen the FirstNet network is initially deployed, it will provide mission-critical, high-speed data services to supplement the voice capabilities of today’s LMR networks.
So while the broadband capabilities of FirstNet will be interoperable, today's land mobile radio networks in a myriad of bands will be around for the foreseeable future and will continue to serve as a Tower of Babel as in 1982. Does FCC even talk about this issue?
Basic Problem
Most FCC decision do not involve safety issues and they are basically "economic regulation" in the terms of my former colleague. Thus FCC is structured to deal with such issues.
The few issues that are really matters of life and death do not easily fit into this framework and theus don't get the attention they deserve. The FCC's inability to resolve the issues in Docket 13-111 is a classic ongoing example of this problem. Will FCC ever give the cellular establishment a firm time limit for implementing their preferred solution or will people just continue to die because of this ongoing problem? There are other solutions besides the quixotic "managed access". FCC has moved heaven and earth to meet cellular industry spectrum demands for 4G and 5G, when will the industry either act to decrease the prison contraband problem or stop blocking other solutions?
As Docket 13-111 Lingers Without Resolution, Comm. Pai Tries to Focus Attention on Prison/Cell Phone Crisis
Sobering meeting w/ corrections officials at Georgia prison about serious, growing problem of contraband cellphones. pic.twitter.com/Xbw3SRBCjm
— Ajit Pai (@AjitPaiFCC) October 16, 2015FCC Commissioner @AjitPaiFCC visited Georgia today to learn about the problem of cellphones in prisons. http://t.co/xI9eZq4c79 (from @AP)
— Kate Brumback (@katebrumback) October 15, 2015.@GA_Corrections: on pace to confiscate >8K contraband cellphones this year. Used to place hits, run scams, more. http://t.co/z8Ks8wgqq6
— Ajit Pai (@AjitPaiFCC) October 16, 2015Long time readers will recall that the issue of contraband cell phone use in prisons and countermeasures for dealing with them have been a recurring topic here, even if it is one that the cellular industry thinks should be buried. In general, communication should enhance life and usually does. But large scale use of contraband phones by incarcerated criminals actually threatens life!
Independent FCC action, championed by Comm. Clyburn, has reduced the cost of authorized legitimate pay phone services from prisoners to their families and has somewhat decreased the demand for contraband phones. On May 1, 2013, FCC released the NPRM in Docket 13-111 "to facilitate the development of multiple technological solutions to combat the use of contraband wireless devices in correctional facilities nationwide." This was almost 4 years after the filing of a petition for rulemaking by the South Carolina Department of Corrections and dozens of other state and local corrections agencies that apparently was consigned the FCC's secret petition black hole where it lingered in a corner of ECFS that was unknown to all but a few FCC insiders!
But as the cellular industry demands major changes for US spectrum policy to satisfy their endless appetite for spectrum below 6 GHz - they have only token interest in higher frequencies as can be seen in their minimal comments to FCC and participation in WRC preparation related to higher bands - as the cellular industry demands the lion's share of FCC's ever shrinking resources, they seem to have little or no interest in dealing decisively with this deadly unintended consequence of their present services. They have sent the underfunded and understaffed state and local prison administrators on a quixotic chase of the "holy grail": "managed access" which will solve the technical problem of illicit cellphone use in prisons with zero impact on the carriers' business plans. Indeed, they deny that this will result in any over coverage while at the same time insist that jamming will always results in over coverage. WOW - responsive physics!
In their most recent ex parte meeting with FCC staff in December, CTIA and carrier representatives pressed for "the need for a court order to terminate service to a contraband device" presumably under all circumstances including prisons in remote areas. Contrast this with the views of the American Corrections Association which ask to simplify the disconnect process, require carrier participation in managed access system if requested by prisons, and allow jamming in the location where it is technically possible due to remote locations.
But meanwhile nothing is being resolved at FCC in this life or death matter. Kudos to Comm. Pai for making an onsite visit to learn about the problem. We hope that FCC's delays in this urgent matter, now that 6 years have passed since the South Carolina petition, will soon end.
Marriott Pays $600k Penalty for Wi-Fi Jamming in One of Their Hotels
As shown above, FCC released an Order on October 3 terminating an investigation of jamming of Wi-Fi signals at a Marriott hotel by the hotel management with a $600,000 penalty payment. (Until recently such payments were classified by FCC as “voluntary payments” and were tax deductible by the perpetrator - no longer so!)
The press release states
The FCC Enforcement Bureau’s investigation revealed that Marriott employees had used containment features of a Wi-Fi monitoring system at the Gaylord Opryland to prevent individuals from connecting to the Internet via their own personal Wi-Fi networks, while at the same time charging consumers, small businesses, and exhibitors as much as $1,000 per device to access Marriott’s Wi-Fi network.
“Consumers who purchase cellular data plans should be able to use them without fear that their personalInternet connection will be blocked by their hotel or conference center,” said Enforcement Bureau Chief Travis LeBlanc. “It is unacceptable for any hotel to intentionally disable personal hotspots while also charging consumers and small businesses high fees to use the hotel’s own Wi-Fi network. This practice putsconsumers in the untenable position of either paying twice for the same service or forgoing Internet accessaltogether,” he added.
A Washington Post article on the episode was titled “FCC to Marriott: No, you can’t force your customers onto terrible hotel WiFi”. It gives Marriott’s side:
Marriott, in a statement, insisted that its actions were legal and designed to thwart "rogue wireless hotspots.""Like many other institutions and companies in a wide variety of industries, including hospitals and universities, the Gaylord Opryland protected its Wi-Fi network by using FCC-authorized equipment provided by well-known, reputable manufacturers," Marriott said. "We will continue to encourage the FCC to pursue a rulemaking in order to eliminate the ongoing confusion resulting from today's action and to assess the merits of its underlying policy."
Of course, Marriott also sells its own WiFi access for $14.95 a day, sometimes charging for multiple computers in the same room. (It amuses you blogger to observe that cheap hotels such as Quality Inn and Motel 6 generally give free Wi-Fi (often breakfast, too) and charge lower rates than Marriott.
The initial complaint in this case came in March 2013, so the case went from compliant to resolution in 19 months. While this might not seem fast to some, it is much faster than past practice and considering the technical and legal issues involved a timely resolution for string a new precedent a rather timely resolution.
The legal basis for this FCC action was § 333 of the Communications Act , 47 USC 333, a recurring topic here in the context of prison jamming of contraband cellphones. Here is the text of the section:
47 U.S. Code § 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.
Clearly Marriott’s action violated this prohibition. While the user’s Wi-Fi system was not “licensed”, it was “authorized” by FCC. Unfortunately, the cellular industry consistently misreads § 333 and tells FCC it means that FCC has no authority to authorize jamming of contraband cellphones in nonfederal prisons, an issue closely related to Docket 13-111.
Prison Cellphone Reply Comments Date Extended
In the above order from FCC, the reply comment date for the cellphones in prison rulemaking, Docket 13-111, has been extended to August 23, 2013.
There is a lot to comment on:
- AT&T objects to requiring a carrier to terminate service to a cell phone identified being in a prison saying it will only do so with an order from FCC or a court. (Perhaps FCC could set up a website and “rubber stamp” all requests from approved prison administrators and then forward the request to AT&T?)
- Boeing states that FCC could authorize managed access in cellular spectrum “without a spectrum lease agreement” and that “reliance on lease agreements to authorize managed access systems could create undesirable precedent” (Most other commenters just believe FCC should simplify leasing and, except for MSS comments, do not suggest that leasing should be mandatory or should be on reasonable terms.)
- CTIA believes that mandatory service termination of cell phones operating in prisons can not be authorized unless FCC “adopt(s) clear, standardized requirements that apply to all cell detection systems” - a clear multiyear delay unless CTIA wants to be helpful -- as opposed to be obstructive.
- Verizon thinks service termination requests should require a court order. Heck, AT&T is more open minded and is willing to consider a request from FCC! (Sprint & T-Mo have not commented as yet.)
- NTCH, Inc. (a regional CMRS carrier that offers service under the trade name CLEAR TALK) says FCC “should declare the confines of prisons, including surrounding lands owned or controlled by the prison system, to be ‘quiet zones’ akin to the Commission's treatment of radio astronomy and other research facilities designated by the Commission…A corrections department could only declare a site a quiet zone in connection with its designation of one or more entities that would bear the expense and take the responsibility of preventing unauthorized transmissions in the prison confines and would also be in a position to offer service over authorized frequencies in the prison area…Once designated as the Prison Service Provider, the Provider would be authorized to prevent or create interference to any unauthorized transmissions from within the prison confines (including the buffer zone described below) because no such transmissions would be lawful under the terms of the licenses pursuant to which the offending cell phones would normally be operating…This plan relies on well-known quiet zone protection principles but extends not just to astronomical observations but to measures which directly protect human health and safety. The modest diminution in rights which the cellular carriers would experience under this plan is far outweighed by the benefits to the public which would result.”
- All the comments can be found at http://apps.fcc.gov/ecfs/proceeding/view?name=13-111.
vox populi, vox dei
Comments in Cellphone/Prison Rulemaking (Docket 13-111)
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.
Your blogger has filed comments in Docket 13-111, which deals with “Promoting Technological Solutions to Combat Contraband Wireless Device Use in Correctional Faciliteis (sic)”. These comments were on behalf of MSS, not for any previous or current client and were made solely in the public interest. At 34 pages without attachments they happen to be the longest filing to date, although length does not necessarily imply quality or success. So far, the docket file has 43 items from outside FCC, mostly comments
The comments start with the above photos of Carl Lackl, Jr. and Captain Robert Johnson to remind readers that unlike virtually all FCC proceedings, this one does not deal with just economic benefits for one party versus another, but rather an unintended side effect of today’s CMRS technology in which real people die.
The comments review the unusual history of this proceeding including multiple petitions that sat in “petition limbo” for years even though some were from local governments and even though Section 1.403 of the FCC’s own rules requires that such petitions be assigned a file number and “promptly “ be included on a public notice for comment. In particular, the MSS comments include as attachments parts of the 2010 GTL petition that have never been commented on that deal with mandates needed to make managed access effective in all cases and which give alternative theories that would permit the Commission the discretion to authorize jamming in special cases if it was found to be in the public interest. Cellular interests cling to an interpretation of Section 333 of the Communications Act that has never been endorsed by the FCC or a court that says FCC lacks jurisdiction to authorize jamming but NTIA has such jurisdiction for federal users.
MSS urges the Commission to require all CMRS carriers to provide the spectrum under reasonable terms needed for MAS if requested by a prison. While today’s major carriers do so and promise to pressure smaller carriers, the reality is no one knows what firms will be CMRS carriers in rural areas next year since many spectrum auctions are pending to implement the spectrum demands of cellular interests. MSS also urges the Commission to require mandatory a priori coordination of all technical changes to the cellular network near prisons with MAS systems in order to maintain the functioning of MAS throughout the network evolution.
The comments emphasize that cell phones in prisons is a complex issue and that no “magic bullet” is likely to be found that eliminates the whole problem without causing side effects. While cellular interests claim jamming would inevitably cause “overjamming” that impacts users outside prisons (see CTIA video) , their preferred “managed access systems”/MAS will also cause excess coverage in prisons that do not have an adequate buffer from publicly accessible areas, such as at Sing Sing Correctional Facility in New York.
The comments raise the issue of financing MAS or other costly solutions and points out the interrelationship between this issue and the ongoing WC Docket No. 12-375 which seeks to reduce the present high cost of inmate communication services (ICS). While cellular interests would like the state and local governments to shoulder the financial cost of exotic technology in the hostile environment of prisons, MSS points out that the carriers themselves are in a better position to handle the financial and technical burdens than prison administrators. Shifting the cost to ICS operators, as California is trying to do, may seem tempting but the inmates are truly a “captive audience” who have already been overcharged for years for telecom services. Increased contact with families can decrease recidivism -- whose costs to society and the economy dwarfs the sums involved in this issue.
The MSS comments also propose a new approach to handle contraband cell phones in prisons that deals with the special case of rural maximum security prisons - actually the location of most of the serious problems since dated suburban maximum security facilities like Sing Sing are rare now. The new approach is called “geolocation-based denial”/GBD and builds on the existing E-911 program. It is proposed that prison with a 300m buffer between secure areas and areas accessible to the general public be allowed to request the Commission to remove the secure area from the coverage of all CMRS carriers. The carriers
Reply comments are still open in this proceeding. vox populi, vox dei
Current ATT coverage in rural Iowa
UPDATE
FCC’s Australian counterpart, Australian Communications and Media Authority/ACMA, has a new blog entry on “Removing jammers from the streets”. Included is the above video. ACMA says
Targeting prohibited devices has demanded an agile approach to compliance. Our activities also include preventative (education/awareness) and enforcement measures. This has helped to restrict the supply of jammers to the local market, forcing consumers to turn to online sources for devices that are often seized before reaching their destination.
The Australian penalties for unauthorized jammer marketing and use are much greater than in the US. For example the blog says:
There could be more substantial penalties, such as receiving a five-year prison sentence or penalty of up to $850,000 (5,000 penalty units) for causing substantial interference to radiocommunications used by emergency services (such as fire, police and ambulance) and other special organisations. And these aren’t the only penalties that could apply.
Note from the video that ACMA, unlike the US cellular interests, is clearly able to differentiate between authorized controlled jamming in prisons and unauthorized jamming that endangers public safety. Compare this with the following CTIA video which vilified both prison jamming and unauthorized jamming based on alleged experience in Brazil.
CTIA interview on prison jamming (June 2009)
UPDATE
Mr. Guttman-McCabe no longer works at CTIA and the interview on prison jamming discussed above has magically disappeared from the CTIA website. But there isn sign that CTIA's policy has changed at all.
On the Assassination of Colorado Corrections Chief Clements
Tom Clements 1955-2013
Yesterday Tom Clements, Executive Director of the Colorado Department of Corrections and a 32 year veteran of public service in the corrections area was assassinated at his home by an unknown party. This is sadly reminiscent of the attack on South Carolina Department of Corrections Captain Robert Johnson in March 2010 which is now known to have been ordered over an illicit cellphone operated in a prison.
(Capt. Johnson is now suing 20 cellular industry firms on the issue of whether they were aware of the illicit calls from the prison where he worked but chose instead “to facilitate this illegal activity.” The firms being sued are American Towers, LLC; Farmer Telephone Cooperative Inc.; Cellco Telephone Co. of the Southeast, LLC; Cellco Partnership d/b/a Verizon Wireless; Sprint Cellular Co. of South Carolina; Sprint Communications Co., L.P.; Alltel Communications, LLC; Alltel Communications, Inc.; Alltel Mobile Communications of South Carolina Inc.; T-Mobile USA Tower LLC; T-Mobile USA Inc.; ATT&T Inc.; AT&T Mobility LLC; Verizon Wireless, LLC; Verizon Wireless Service LLC; Verizon Wireless of the East, L.P.; and Tracfone Wireless, Inc.)
I recall a meeting among FCC staffers maybe a decade ago where a colleague, who has since left FCC, wondered why a manager in another part of FCC was so upset about something she said. She commented that “all we do is economic regulations” so it wasn’t “worth getting emotional about”. Well, much of what FCC does is probably “economic regulation” like local zoning and in some way determines who gets more money than another party. But Section 1 of the Communications Act also charges FCC to deal with “promoting safety of life and property through the use of wire and radio communications” and some FCC actions have life and death consequences.
It is too soon to tell for sure if the Clements assassination was connected with illicit cell phone use, but if I was Mitt Romney I would bet $10,000 that it was.
FCC now has in its “inbox” at least 3 petitions dealing with the cellphone in prisons issue that it has not acted on:
- CTIA’s November 2007 petition (Part of this petition not related to prisons was finally addressed in Docket 10-4, but the prison related issues have never been even put out for public comment)
- South Carolina Department of Corrections August 2009 petition (Signed by 30 other state and local corrections agencies)
- GTL July 2011 petition - This petition has disappeared into FCC’s petition “black hole” and is not available on the FCC’s voluminous website which promises “transparency”. However, GTL has provided us with a copy so we can make it available here. (MSS contributed to the drafting of this petition as well as the South Carolina petition. However, no present MSS clients are involved in this issue.)
Chairman Genachowski, these petitions come from a variety of parties - including a major trade association, state governments and a small company - and advocate a variety of actions - some of which are mutually inconsistent.
Isn’t it time to act on this urgent public safety issue and clarify FCC policy by dealing with these petitions one way or another?
UPDATE
No proof yet that this event was cellphone related, but it apparently also occurred to ABC News which posted a story entitled “Prison Chief's Death Highlights Safety Concerns” Here is a section:
Correctional professionals interviewed in the aftermath of the Colorado shooting say the growing influence of prison gangs, their ability to communicate with affiliates on the outside through smuggled cellphones and the ease with which people can be found and tracked online have made the job even more dangerous for them and their families.”
CTIA, why don’t we agree to both ask FCC to act one way or other on these pending petitions, including one of yours, that are gathering dust as people die.
UPDATE 2
Here is the new story about the murder of 2 prosecutors in 2 months in a rural county of Texas. District Attorney Mike McLelland and his wife, Cynthia were found murdered at their home on March 30. Assistant District Attorney Mark Hasse was killed on his way to work in January. Note that the McLelland case MO was they same as in the Clements case and the Johnson case. That does not prove that illicit cellphone use was a factor, but if I was Mitt Romney …
California Report on Prison Cell Phone Use Issues
As of July 2008, seventy-six members and fellows are also members of the National Academies, six are Nobel laureates, nine are National Medal of Science recipients and two are recipients of the National Medal of Technology.
CTIA and the major cellular carriers believe that Section 333 of the Communications Act precludes FCC from authorizing jamming of cellular communications by private sector or state or local government officials. The meaning of Section 333 has been a recurring topic here. While NTIA appears to agree with the cellular industry in this interoperation of the section, it appears that FCC has never made an en banc finding on this interpretation of the law although it is clear that under present FCC rules jamming is not authorized.
The CCST report describes managed access as:
“The Managed Access System (MAS) refers to a standard cell phone network system used in a defined close quarter geographic area such as a campus, military base or a prison. The theory behind MAS is to allow authorized cell phones to connect to the standard carrier (e.g. AT&T, Sprint, T-Mobile,Verizon) networks, while preventing unauthorized cell phones from connecting to the carrier networks. A well-designed and implemented MAS would function as a system to detect and preclude the operation of cell phones not authorized in the MAS approved database.”
In contrast to CTIA’s confidence in managed access and NTIA’s optimism, CCST finds
“(T)he Managed Access System (MAS) technology of today is not mature enough for immediate large-scale deployments such as that proposed by CDCR at California’s 33 state prisons.”(p.6)
Readers who followed the Linkedin Spectrum Experts group discussion on the NTIA report may recall that Australia’s Barry Matson suggested the solution may be putting the burden on the cell operators to not connect calls from cell phones in prisons. The report independently comes to a similar suggestion:
The CCST Project Team recommends that potentially useful technology approaches be explored in confined prison areas, and that cell phone carriers be engaged to explore options of denying connections for ‘unregistered’ cell phones within prison locations using the carriers’ technology. In this latter case, identity of illegal cellular phones could be obtained via a benchmarking technology and the carrier could then deny cellular connection to the specific unregistered devices. Engaging the carriers would likely require either a legal requirement to participate or an income incentive via fee for participation. With the recent agreement of cell phone carriers with the federal government to disable services on stolen cell phones, this approach should be explored.
But even if managed access is ever to be used on a large scale it needs a better policy foundation than FCC just condoning its use. Successful managed access requires both the active participation of all the cellular carriers near a prison and detailed coordination of any technical changes to the cellular network including introduction of changes in the physical layer of the RF signal as well as new services. A successfully operating managed access system can become useless overnight and endanger public safety if one of the cellular systems in the area has an unanticipated technical change. While the major cellular carriers have indicated a willingness to accept managed access systems and sign agreements with prison authorities, they have never stated that would coordinate all technical changes and delay them as necessary until the managed access systems were upgraded. In addition, the 4 major cellular carriers are not the only carriers in the country, especially int he rural areas where maximum security prisons are often located. Indeed, future cellular auctions could well result in more corporate diversity. CCST finds
“A coordinated effort of several states to petition the FCC to modify existing spectrum owners’ agreements to require they provide unobstructed use of their spectrum within the geospatial confines of corrections facilities would be an important modification of regulations. If this effort is undertaken, the discussions could also include the possibility of using jamming technologies in some conditions.”
While the mainstream cellular industry is enthusiastic about managed access because it may allow jamming to be kept in Pandora’s Box, they have never taken a more positive step to build the policy infrastructure needed to give managed access a fair chance of success, whether or not that is really possible in the technical sense.
Sen. Grassley: Your Recent "Marimba Moment" Was Not All Your Fault - Your friends in the Cellular Industry Made It Inevitable
In January, this blog had a post entitled “Is the Cellular Industry ‘Tone Deaf’ ”? It described a 1/12/12 New York Philharmonic concert of Mahler’s 9th Symphony that was interrupted by an iPhone Marimba ringtone from a front row seat.
At the time I wrote:
The cell phone industry is united against legalizing jamming, but seems unable to do anything about antisocial cell phone usage that inevitably leads to interest by concert halls and restaurants in cellular jamming. As previously stated here, French national law explicitly permits cellular jamming in concert halls. While jamming in such urban locations inevitably will cause other problems and is thus a bad idea (as opposed to jamming in isolated maximum security prisons where the geometry is very different), there seems to have been little interest in the cellular industry in alternative approaches to minimize the antisocial aspects of cell phone use.
The cell phone industry is usually a positive contributor to US society and the US economy. But it continues to have some blind spots as outlined in the previous New Year's Resolutions post here. Maybe it should address them? Maybe FCC leadership should politely point out these issues from time to time and mention the possible impact of neglect?
In my New Year’s Resolutions for the Cellular Industry post I wrote
That post’s 7 issues attracted NO inquiries from the cellular industry which apparently is focusing all its efforts on its appetite for spectrum, not social harmony resulting from its products and services. (In fairness one high CTIA official did reply to an e-mail from me about the post and seemed puzzled why people had trouble turning off their ringers.)2. Social harmony and cell phone use. Does the cellular industry ever wonder why the public rose up in force against the Docket 04-435 proposals to allow cellphones in airplanes or why there is a market for (presently) illegal cell phone jammers? The reason is that there is a lot of obnoxious cellphone use in this country! Airplanes are one of the few places without it and the public outcry was to preserve that. There is an interesting essay by Don Norman that was prepared for a 2005 Motorola Research Visionary Board meeting entitled “Minimizing the annoyance of the mobile phone: The Annoyance, Irritation, and Frustration of The Mobile Phone -- A Design Challenge” that starts off with the quote “Nearly one in three (30%) adults say the cell phone is the invention they most hate but cannot live without”.
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?
Senator Grassley, don’t feel bad about the incident. These types of things happen all the time because there is no consistent simple way to turn off the ring tone of US cell phones as there is in Japan. The cellular industry is much too busy grabbing spectrum to care about such issues of “unintended consequences”. It feels it can use its position of political strength to stop the sale of cellular jammers which people use illegally in selfdefense of obnoxious cell phone use.
In order to keep this “clear bright line” on jamming in effect, the industry even fights the use of cell phone jammers in isolated prisons where they could be a cost-effective option to enhance public safety. But apparently the cellular industry has never learned from the War on Drugs: to defeat a serious contraband issue you must address BOTH supply and demand. FCC may go through the appearances of being active against the selling of cell phone jammers, but the small and dispirited Enforcement Bureau technical staff doesn’t stand a chance against Chinese Internet marketing unless the demand is moderated also.
Sen. Grassley, at least you handled your moment much better than Sen. McCain handled his a few years ago on the Senate floor:
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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