The Information Technology and Innovation Foundation submits this letter to supplement the record in the above proceeding regarding the Commission’s proposal to authorize jamming as a solution to contraband wireless device use in correctional facilities.[1] For the reasons described below, this proposal is contrary to law and unnecessary given alternative solutions.

The Jamming Proposal Requires Implausible Statutory Interpretation

Under Section 333 of the Communications Act, “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 Act or operated by the United States Government.”[2] Rather than adhering to the plain text of this provision, the FNPRM jamming proposal starts with a desired policy outcome (jamming contraband phones) and then strains the statutory text for a novel interpretation to enable it. That’s backward.

The Commission proposes to deauthorize devices based on the specific context of their use. This definition is contrary to the natural reading of Section 333 and normal Commission practice in which authorization is a categorical, stable concept, not an attribute that the FCC decides on a case-by-case, context-dependent basis. The proposal to do the opposite would be a change in the fundamental meaning of authorization, not just an interpretation within the Commission’s discretion. Therefore, the FCC’s proposed ad hoc “deauthorization” is likely inconsistent with the statutory meaning of “authorized.”

The FNPRM points to Section 303 authority for its proposals, but that analysis would require the more general provisions of that section to subsume the more specific provision regarding willful interference in Section 303(m)(1)(E). That subparagraph entrusts to the Commission regulatory action against those who willfully interfere with “any other radiocommunications signals” without reference to whether they are “authorized” in the sense the jamming proposal relies on in Section 333.[3] This provision is thus further confirmation that the FNPRM’s jamming proposal depends on creating categories Congress did not envision. The Commission cannot expect deference to substitute its own tenuous reinterpretation for the plain text of the Act.[4]

None of the above arguments entail the Commission must permit contraband communications. It merely rules out a blunt force jamming solution. The FCC has a panoply of enforcement mechanisms it can deploy against contraband devices. Jamming is just not one of them.

Jamming Will Necessarily Result in Willful Interference To Lawful Communications

The FNPRM is right to seek solutions that impact “only contraband devices within a correctional facility,” but jamming is unsuccessful on both counts.

Even accepting the proposed redefinition of “authorized” in Section 333,jamming solutions will result in willful interference with the communications of authorized devices. Jamming, by definition, impacts all devices in the area in which it is deployed. But not all devices in correctional facilities are contraband. Therefore, even accepting the FNPRM’s reading of the statute, facility-wide jamming violates Section 333 every time it causes interference to a non-contraband device.

Furthermore, the Commission should consider carefully the technical realities of real-world jamming solutions. It is not enough to take vendors’ word for it that they will be “carefully engineered” to remain within the walls of a correctional facility. Jamming signals that affect nearby businesses and residences would be unlawful and a serious policy concern, and the Commission should insist correctional facilities verify all systems comply with the law.

Alternative Options Exist; the Commission Should Make Comparable Cost-Benefit Evaluations

Jamming is not only unlawful, but also unnecessary as a matter of policy. Alternative solutions exist to target contraband device usage without jamming lawful communications. Managed Access Systems (MAS) are one such example. The Commission should make use of the ongoing investment and development of MAS technology and facilitate easy leasing arrangements to reduce transaction costs that may limit MAS uptake.

Importantly, the Commission should make apples-to-apples comparisons between the financial costs of MAS and jamming solutions. Jamming is a blunt solution that can be deployed cheaply if careful engineering were not a concern. MAS may present higher upfront costs, but they come with the benefit of not jamming non-contraband communications inside or outside a correctional facility. The relevant cost comparison, therefore, is between a well-targeted MAS system and a (hypothetical) jamming system that produces equally targeted results. The Commission should be wary that jamming systems may have a lower price tag because their full cost is borne by law-abiding third parties.

Conclusion

The Commission should pursue the policy end of preventing contraband phones in a way that complies with the law and properly accounts for the costs and benefits of alternative solutions. Under both rubrics, jamming is unlikely to be the best solution.

Endnotes