The sound of silence: why and how the FCC should permit private property owners to jam cell phones.

• Author: Carter, III, S. Robert

"Speak only if you can improve upon the silence."--Spanish Proverb

1. INTRODUCTION

   The use of mobile telephony in the United States has skyrocketed since its introduction in the early 1980's, to the point where cell phone usage is ubiquitous. (1) Although cell phones provide the public with the convenience of near-constant contact, this convenience is not without its drawbacks. People are often forced to bear the negative effects of this increased ability to communicate, including having their solitude disrupted by the loud banality of others' conversations. (2) One potential solution to this problem is for property owners to purchase a cell phone jamming device that would block the transmission and reception of the radio signals cell phones need to communicate. Many countries throughout Latin America, the Middle East, and Asia already permit the sale of such devices, (3) and Canada is considering permitting them as well. (4) Jamming devices are not legally available in the United States, however, because the Federal Communications Commission has determined that the Communications Act of 1934 prohibits their use.

   This comment examines the costs and benefits of allowing private property owners to use cell phone jammers, and then argues that the FCC should adopt a licensing system that would allow the jammers to be used. Part II evaluates the interests of private property owners in using cell phone jammers. Part III explains how cell phone jammers work, provides a brief background of the regulatory authority of the FCC over devices that interfere with radio communication, and explains why the FCC has interpreted portions of the Communications Act of 1934 to specifically prohibit the use of cell phone jamming equipment by private property owners. Part IV examines potential alternatives to using jamming technology, and argues that these alternatives are incapable of eliminating all of the negative effects caused by cell phone usage on private property. Part V discusses the potential negative consequences of allowing jamming, and outlines some of the problems that a mechanism for implementing jamming technology must address. Finally, Part VI evaluates different mechanisms for allowing private property owners to implement jamming technology, and concludes that the best way to do so would be to have the FCC license cell phone jamming equipment rather than granting property owners permission to jam as a property right.

2. PROPERTY OWNERS' INTERESTS IN JAMMING CELL PHONES

   Private property owners have an interest in jamming cell phones because, simply put, cell phone usage can be so invasive as to adversely affect the way owners use their property. Indeed, property owners would no doubt claim a similar interest in preventing all potentially intrusive behavior on their property if a mechanism existed for them to do so. But cell phone usage is unique among behavior that property owners would seek to avoid; for a variety of reasons, cell phone operators are less likely to be constrained by the social norms and customs that help contain intrusive conduct. (5) Because traditional constraints on behavior are less effective against cell phone users, there is an increased need for property owners to have additional means of enforcing their right to regulate invitees' behavior.

   Cell phone usage differs from other forms of invasive behavior because of the ways in which society defines permissible uses of the telephone. First, a case can be made that there is a "cultural lag" between the communications capabilities that technology provides and the social response to those technologies. (6) Although public communication via telephone can currently take place almost anywhere, the argument goes, portions of society are still operating under the rule that such communication remains discreet even outside the "cone of silence" of the telephone booth. (7) In fact, the privacy provided by telephone booths allowed the Supreme Court to determine that public telephone conversations could be protected under the Fourth Amendment. (8) Thus, people may still be operating under the implicit assumption that there remains an element of exclusivity in telephone calls made in public areas. As a result, they are not modifying their behavior to compensate for the fact that technology has enabled them to have conversations in places where there is nothing to prevent the sound of the conversation from escaping. (9)

   Additionally, some people view having cell phone conversations on others' property as a legitimate exercise of their rights. The application of rights analysis to telephone conversations is certainly not new. The Supreme Court in Katz v. United States was willing to find a privacy right in public conversations in telephone booths, and some courts have also been willing to find property rights in general telephone service for the purposes of Fifth Amendment takings analyses. (10) Some users have also (erroneously) asserted a First Amendment right to be able to talk on their cell phones while on others' property, (11) while still others have articulated a strong justification, if not a right, to be reached in case of an emergency. (12) The concept of cell phone usage as a right encourages some cell phone owners to make use of their phones while on others' property, while rights-based justifications are often lacking in other forms of invasive behavior.

   Although this comment will argue that no property rights attach to cell phone users' conversations when they are on others' private property, it is nevertheless perhaps instructive to treat the impacts of cell phone usage on property owners as negative externalities of that usage. As articulated by economist Ronald Coase, a negative externality is created when one person's exercise of rights imposes costs that another person is forced to absorb. (13) Coase suggests that when private property rights are clearly defined, private actors will negotiate for the most efficient use of the property. (14) However, this theory assumes that there are no transaction costs to the negotiations. (15) Cell phone usage is particularly harmful in that the private property owners do encounter transaction costs, because the culture surrounding cell phone usage makes it difficult for the owners to effectively assert their right to control what invitees are allowed to do on their property. (16)

   While some property owners have cited a desire to use jammers simply to curb what they perceive to be the boorish behavior of their guests, one of the primary justifications for jamming is the significant disruptive impact that even one cell phone call can have on the use to which the owner wants to put his or her property. (17) This concern is at its apex when the property owner relies on silence in order to provide a service. (18) For example, when a patron's cell phone recently interrupted a Broadway performance of the play, "The Lion in Winter," actor Lawrence Fishburne interrupted the play to assert the theatre's right to exclude the telephone conversation. (19) The phone was silenced, but by then the damage to the play was done--the continuity of the storyline and the characters had been disrupted and the experience had been tainted for the audience. Because of the cell phone user, the theatre was unable to provide a superior quality performance. A similar problem occurs when cell phones interrupt musical productions. (20) The disruption causes much more than a minor annoyance, because the entire production can be spoiled by one interruption. (21) Often, the conductor and the musicians are shaken by the disturbance, as the disruption has stopped the "mood" and "atmosphere" of a piece from being fully created. (22) Finally, there are times when the silence itself is the valued service that can be mined, as can be the case in hospitals and places of worship. (23)

   In Canada, where lawmakers are currently considering allowing private property owners to jam cell phones, public support for jamming is highest when private property owners provide a service that relies on the silence of its guests. (24) For example, about two-thirds of Canadians support the use of jamming devices at places of worship (68 percent), theatres (68 percent) and libraries (65 percent). (25) This survey suggests that, at least in some circumstances, a society might increase its overall well-being by giving private property owners a powerful and effective means of enforcing their rights to exclude by allowing them to use cell phone jamming devices.

3. HOW JAMMERS WORK AND WHY THE FCC HAS BANNED THEM

   A. How Cell Phone Jammers Work

   Cell phones and the base-station antennas with which they communicate are essentially two-way radios. (26) "[J]ammers prevent mobile phones from exchanging `handshake' signals with their closest mobile-phone tower" by emitting electromagnetic white noise. (27) As is the case when jamming any other radio device, a cell phone jammer transmits "a signal on the same frequency and at high enough power that the two signals [will] collide and [then] cancel each other out." (28) By way of analogy, if one were to "drop two pebbles in still water[,] rings of waves [would] radiate out from them." (29) When these rings collide, the water becomes smooth again. (30)

   Although the theory behind blocking cell phone transmissions is similar to that of blocking any radio transmission, cell phones are often more difficult to jam than other radio transmissions. (31) There are several reasons for this increased complexity. First, different cellular systems operate on different frequencies. (32) For example, cell phones on the PCS system operate along a different range of frequencies than analog cell phones, and different vendors offer cell phone service on different frequencies. (33) Second, even within one cellular system, a phone operates over a wide range of frequencies. (34) Within this range of frequencies, cell phones are designed...