Here in South Carolina, the wireless carriers have had quite a successful and profitable week. From news accounts, the pre-paid minutes and data that carriers sell to providers of anonymous, pre-paid phones have been used by gangs to spread deadly retaliation orders from one unit to the next during gang fighting at Lee Correctional. They seem to have been the tool of choice for a state Department of Corrections (SCDC) inmate on trial for running a drug a drug and bombing conspiracy from Broad River Correctional, and they were allegedly used by another SCDC inmate to extort money from his own mother, under threat from other gang members, both inside and outside of SCDC.
Executives in the wireless industry should earn large bonuses again this year for continuing to convince the Federal Communications Commission to do their bidding with their tortured legal theory that illegal, criminal calls by inmates using illegal cellphones are “authorized” and protected by Section 333 of the Federal Communications Act of 1934.
Actually, Section 333 only prohibits interference with authorized signals: “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.”
Confident that their deep campaign funding pockets can prevent congressional action, the industry shifts the blame to Congress by claiming that Section 333 prohibits jamming in prisons. They contend that all signals are “authorized.” After all, they earn profits on all calls, and the anonymous, prepaid minutes and data used by inmates are highly profitable.
However, it is not the language of the statute that prevents states from deploying jamming. Instead, it is the absurd legal theory: (1) that illegal calls from illegal phones are “authorized;” (2) that stopping criminal activity is an optional (willful) act for state government as opposed to a necessary or mandatory act; and, that state governments are “persons.” The carriers lease the public airspace. The FCC is the landlord and has full authority to interpret, execute and apply the federal statute in a manner that protects public safety.
As a matter of statutory construction, nothing could be more absurd than defining “authorized” as “illegal” or “criminal.” In fact, “unauthorized” and “illegal” are synonymous by definition and in the law. As a matter of basic statutory interpretation, “illegal” is the opposite of “authorized.” Black’s Law Dictionary defines “unlawful” as “not authorized by law.” Legally, “authorized” means “legal.” It can virtually never mean “illegal.”
Section 333 was never intended to prohibit state governments (not persons) from jamming criminal or otherwise illegal signals. This is bolstered by the fact that Section 333 was adopted in 1934, long before the existence of cellphone technology. No other federal agency interprets the term “authorized” — or any other term for that matter — in a federal statute in a manner that protects known and ongoing criminal activity.
The carriers’ related argument that once “licensed or authorized” by the FCC, they can simply ignore the issue of illegal calls from U.S. prisons is similarly absurd. The entire purpose and history of the FCC belies this position, as illustrated by its regulation of radio and television content. Carrier licensing was not intended to be carte blanche for facilitating criminal activity.
Concerned that the U.S. Justice Department and FCC Chairman Ajit Pai are reviewing this tortured statutory interpretation, the wireless industry is attempting to “run out the proverbial clock” on Mr. Pai and the Justice Department, just as they did after U.S. Senate passage of the Safe Prisons Communications Act of 2009. The industry will push for expensive managed access solutions that they can defeat. And their feigned concern about inmates and staff who need to call 911 only proves their ignorance of 24/7 prison operations where every employee is 911. Meanwhile, the clock is ticking.
If the Justice Department and/or the FCC simply apply the statute as written and authorize states to jam illegal, unauthorized calls in prisons, the carriers may do what they have long been able to do: fix the problem once and for all, without jamming. They could do this in two ways.
First, the carriers could use “geofencing” to stop calls from cellular towers. Using basic geometry, we know that carriers know the location of any serviced phone. The wireless industry routinely provides such location information in response to court orders, subpoenas, and warrants. Since the industry can already locate phones, they could be required to drop calls coming from or going to any phone inside the perimeter (geofence) of a prison.
Alternatively, carriers could use “beacon technology.” Similar to the Amber Alert system, the carriers would “push” inexpensive software onto to every phone, just like they do on a regular basis. That software would only become active and “kill” the phone when it comes within range of simple radio “beacons” that would be provided only to prisons and jails. When the phone leaves the prison, it comes back to life. The beacons are low cost and low power. There is no bleed-over off of prison property.
During the recent gang fights at Lee Correctional, each time a call was made from one gang member to another gang member in a different dorm, the tower technology “knew” that the originating phone was an illegal phone in that large and isolated prison. Instead of programming their technology to kill that call, the wireless industry intentionally connected that illegal phone to another illegal phone in a separate dorm in the prison. As a result, the gang retaliation spread and others were killed, but the carrier made money. For less powerful interests, knowingly and intentionally facilitating known and ongoing criminal activity is a crime: conspiracy, racketeering, and aiding or abetting come to mind.
The prepaid minutes and data access loaded onto prepaid phones used by inmates are highly profitable for the cellular industry, so it is not shocking that the industry does not want to solve this problem. That our government continues to allow the industry to avoid responsibility should shock us all.
Jon Ozmint is an attorney and former director of the state Department of Corrections.