Legal Cell Phone Blocking? Cell Phone Blocking Paint and the FCC.

TMCnet reports that a company called NaturalNano has developed a paint that blocks radio waves. The paint contains nanotubes with copper cores that block radio waves of all frequencies. The article says they will market it as a cell phone blocker, but one blogger has already suggested that those anxious about leaking wifi access paint their homes with it.

But is it legal? My first reaction was “yes.” But now I’m not so sure.

Section 302 of the Act gives the FCC jurisdiction to regulate “devices” or “home electric equipment” or “electric systems” that potentially cause interference, but it doesn’t say anything about passive blocking. There is also an old case involving a challenge to construction of the new Sears Tower in Chicago, in which the court affirmed the FCC’s determination that it had no power to review or regulate building construction even if that blocked radio and television reception (Illinois Citizens Comm. for Broad. v. FCC, 467 F.2d 1397 (7th Cir. 1972)). Combine this with the recent decision on the broadcast flag in American Library Assoc. v. FCC, which rejected a broad reading of FCC ancillary jurisdiction (finding that general authority over broadcasting didn’t create general regulatory authority over consumer devices), and it looks like paint that blocks radio reception is perfectly legal. (The FCC has banned cell phone jammers before, but these work by transmitting noise on the relevant frequencies, clearly within the FCC’s jursidiction.)

But then I got to thinking about the very broad language of Sec. 333 of the Communications Act. It says:
“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.”

That’s rather broad, so the narrow construction in ALA v. FCC may not be warranted. It’s also distnguishable from the Sears Tower case. There, the interferance with broadcasting was an unintended consequence of the construction. Here, interfering with radio signals is the whole point of developing this paint. The only purpose in the world given by NaturalNano to put nanotubes in this paint is to block cell phones (and other RF). There is no claim that it makes it more durable, a brighter color red, etc. They do not claim it insulates better. They make no claim whatsoever beyond “we developed this to block RF.” They market it to people as “paint with this and you can block those annoying cell phone calls.” They do not even pretend to market it under the guise of better paint that just happens to block cell phone calls.

Similarly, the people who want to buy the paint, at least those quoted in the article, are not buying it because they say “wow, nanotubes DO make my reds brighter and block heat loss.” They are saying “I want to block those $#@! cell phones.”

This is what, arguably, distinguishes this paint from aluminium siding, stucko, or lining my home with tin foil. Any of these have well established other uses. I might, in my heart of hearts, line my home with aluminium siding to block cell phones. But I can plausibly claim I did it for some other reason, and a wealth of history backs me up.

I’m not saying it’s a slam dunk, mind. I expect that the paint manufacturer and purchasers will argue for something along the old Sony standard. As long as there is a legitimate non-jamming use (paints my room), then the fact that it also jams cell phones does not rise to “willfull” or “malicious” absent specific evidence (and, at the least, manufacture and sale cannot be prohibitted). I expect they will also argue that if the FCC can regulate paint, then its authority has no definable limit, exactly the result rejected in ALA. They will also argue that Sec. 333 applies only to active jamming or interference (as contemplated by Sec. 302), rather than passive interference from physical objects like paint.

Which is why I will wait and see what happens rather than conclude that it definitely is or definitely isn’t legal.
I epxect CTIA or someone will bring a complaint to the FCC eventually (unless Congress steps in first).

Stay tuned . . . .

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5 Comments

  1. John says:

    Nanotubes! Technoparanoia! Hey Harold, whatchu doing on my beat?

    Oh yeah, the legal bit.

    Well, I think this paint is wonderful. It will be interesting to see how it works out.

    My current technique for dealing with obnoxious cell phone users is to simply join in their conversation. I did this yesterday in Logan airport. Some guy sat next to me on a row of seats that had lots of empty seats further away. He started talking to somebody in his office, giving instructions for what to do that day. After about five minutes, I just started in. I asked for clarifications about asignments. When he said, “do you understand,” I said, “Yah-boss. Me understand. Clear as mud.” when he said, “Get Roberts to help on that” I said, “But I don’t know who Roberts is” and similar.

    Soon enough he got up and continued his conversation from another part of the enormous lobby and I went back to reading my book.

  2. Harold says:

    I like your approach to cell phones.

    Everyone thinks this paint is wonderful. So here is my prediction. No initial action. Gradually, however, people start to notice that their cell phones don’t work well when staying in hotel rooms. Huh? Turns out that hotels have lost a major revenue stream due to cell phones. In the past, they used to get at least a $1 if you called your long-distance carrier through a phone card (and even more if you actually dialed a number). Now everyone uses cell phones. Not surprisingly, a major purchaser of jammers in Europe (where they are legal) is hotels.

    Then we will start to see push back from the AMA and other professionals who, for various reasons, are on 24hr call. “I keep my pager on vibrate and behave myself,” says the good heart surgeon. “But now I can never go to a concert or movie again, because some patient may die when I don’t get my page.” Eventually, something will go catastrophically wrong somewhere, and it will be blamed on the fact that the critical person was not reachable because he was somewhere this paint blocked his cell phone and, because the owner of the property did not DISCLOSE that you could not receive cell/pager signals, the critical person innocently entered the Dead Zone. Law suit ensues.

    Eventually one of several possible outcomes will emerge. (a) Congress will explicitly act, either by giving the FCC authority to regulate cell-phone blocking paint or by requiring disclosure for any commercial establishment using thgis paint; or (b) states will address it piecemeal.

    That’s my prediction. Come back in 5 years.

  3. Karen says:

    <i>Everyone thinks this paint is wonderful.</i>

    really? reports I’ve been hearing have been quite the opposite… People get really touchy when threatened with dead zones in their cell reception. They like the idea of keeping cell phones out of restaurants and theatres just fine until they realize that also means their own cell phone.

    Very good point on the disclosure of the dead zone. I didn’t even think of that.

  4. Stearns says:

    Harold, do I understand you correctly that hotels in Europe are allowed to deliberately create scarcity (jaming your perfectly legal private cell phone) just so that they can charge monopoly prices for prividing the now-scarce service?

    I guess I better get to work on that death ray that destroys the earth’s oxygen and water. I plan to set up a concession stand.

  5. Harold says:

    It’s my understanding, but I can’t claim too much familiarity with European law.

    As for your death ray — I’m sure everyone would agree you are entitled to an appropriate return on your investment.

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