CellAntenna, a company that sells wireless equipment, has decided to challenge the FCC’s ban on cell phone jammers. As some of you may recall, about a year and a half ago the FCC’s Enforcement Bureau issued a public notice that 47 U.S.C. 333 makes it illegal for people to market or use cell phone jammers in this country. (By which I mean active intentional jamming, as the jury is still out on the passive cellphone jamming nano-paint.)
According to the article, CellAntenna has some theory that Section 333 and the FCC’s general authority under the Communications Act are trumped by the Homeland Security Act of 2002. Since cell phones are used by terrorists to trigger bombs, they appear to argue in the article, the public security mandate outweighs Sec. 333 and the FCC’s determination on its general authority over the use of radio spectrum to prohibit cell phone jammers.
I confess that, based solely on the reading from the article, I’m highly skeptical. Why?
See below . . .
It’s always dangerous to judge legal arguments from a magazine blurb. But as presented, CellAntenna has some high hurdles ahead of it.
CellAntenna appears to be arguing that the 2002 Homeland Security Act somehow repealed Sec. 333 as it applies to cell phone jammers because (a) cell phones are used in terrorist attacks, and (b) therefore we need to have cell phone jammers available so that public safety folks can use them to jam cell phone signals that set off bombs. This is already something of a stretch. But even if we accept this premise, CellAntenna’s lawsuit runs into a number of legal problems.
First, CellAntenna relies on what we call an “implied repeal.” That is to say, the Homeland Security Act, being a later act of Congress, supercedes the contradictory laws passed earlier, even if Congress does not explicitly repeal or create an exception to the earlier law. So if Sec. 333 of the Communications Act of 1934 is contradicted by the Homeland Security Act of 2002, Homeland Security Act wins.
But implied repeals are, as the Supreme Court says, “highly disfavored.” If there is any way to interpret the laws as being in harmony with one another, the court should interpret the laws accordingly. I think it unlikely that use of cell phone jammers is so critical to national security that it automaticly trumps Section 333.
More to the point, as the article observes, federal and state law enforcement already can use cell phone jammers. So CellAntenna needs to argue that it is so necessary to have cell phone jammers that just getting them to state and federal law enforement isn’t enough. Color me skeptical on that one.
Finally, CellAntenna has chosen to completely bypass the FCC and take its case to the courts. Courts generally don’t like that. The article mentions that the company tried to sue in a Federal District Court, and were told to go to Federal Appelate court. This suggests to me that they tried an “as applied” challenge and were told they needed to appeal from the agency declaratory ruling. I expect a number of exciting arguments about whether CellAntenna can even get its case heard before they even begin to discuss the merits.
Still, this is the 11th Circuit. Stranger things have happened in the 11th Circuit on these issues. So we’ll just have to see what develops.
Stay tuned . . . .