The Sound of Silence: Why and How the FCC Should Permit Private Property Owners to Jam Cell Phones

Speak only if you can improve upon the silence.--Spanish Proverb I. 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. II. 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. …

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