FCC claims authority to conduct warrantless searches

May 21, 2009 10:42 AM

The FCC investigated a pirate radio station in Boulder, Colorado earlier this month and left a copy of their official inspection policy asserting that they have the authority to perform warrantless searches of private property if there is any FCC-licensed equipment on the property, including cordless phones, cell phones, wireless routers, intercom systems, and baby monitors.

Section 303(n) of the Communications Act of 1934, as amended, (Act) gives the Federal Communications Commission the "authority to inspect all radio installations associated with stations required to be licensed by any Act, or which the Commission by rule has authorized to operate without a license under section 307(e)(1), or which are subject to the provisions of any Act, treaty, or convention binding on the United States . . ." 47 U.S.C. 303(n) Both Section 303(n) of the Act, and the Rules which implement the Act, grant the right to inspect most radio operations to the Commission, and by delegated authority to the Commission's Bureaus and agents. The Enforcement Bureau conducts inspections of radio installations as part of the Bureau's function to "[e]nforce the Commission's Rules and Regulations." 47 CFR 0.111(a).

Both licensees and non-licensees must allow an FCC Agent to inspect their radio equipment. Along with the privilege of possessing a license come responsibilities such as knowing the applicable rules, including allowing the station to be inspected. Licensees should be aware of the Commission's right to inspect. Equally important, FCC Agents are allowed to inspect the radio equipment of non-licensees. Non-licensees include those individuals or entities operating in accordance with Part 15 of the Rules. Non-licensees also include those who should have a license to operate their equipment but have not obtained a license and are operating without authority.

posted by notashroom (36 comments total)

so much for our constitutional rights
posted by pyramid termite at 10:47 AM on May 21

The terrorists have won.
posted by RussHy at 10:52 AM on May 21

Hmmm. Radio stations with permanent installations aside, does it specify anywhere that they have to be allowed in to inspect the device? If they ever wanted to take a gander at my router I'd just unplug it and bring it outside sans power brick. Hell I'd probably remove the bootflash too.
posted by datacenter refugee at 10:54 AM on May 21 [1 favorite]

Do cordless phones really count as a "radio station"?
posted by smackfu at 10:58 AM on May 21 [1 favorite]

Since I never signed any agreement, I'm a little unsure how they presume I've surrendered my protected rights.

I want to see this go all the way to the Supreme Court.
posted by mikelieman at 11:06 AM on May 21 [7 favorites]

Well, if the law was written in 1934 they probably weren't expecting almost everyone to have FCC licensed radio transmitters in every house. I know there were radio hobbyists back then but were those 'licensed transmitters'?
posted by delmoi at 11:09 AM on May 21

Warrants? Warrants are for socialist fascist tyrants! Rights?!? Only terrorists want rights!!! We don't need rights, we have FREEDOM.

Keep your privacy, your habeas corpus, we've got guns, twittered executions and liquor!
posted by yeloson at 11:10 AM on May 21 [6 favorites]

Since I never signed any agreement

What agreement would you have signed? Laws cover us, regardless of how we feel about them; this isn't a contract dispute with a private ISP.
posted by nomisxid at 11:15 AM on May 21 [1 favorite]

The baby monitor thing makes sense. Until I became a father I hadn't realized that "Hop on Pop" was a terrorist manual.
posted by dances_with_sneetches at 11:18 AM on May 21 [2 favorites]

My summary:

1) The FCC aren't abusing this power. They are using it to investigate pirate radio stations.

2) If the FCC did abuse this power, it would probably get overturned in court as an unreasonable search and seizure.

3) At which point the FCC should have no problem getting warrants for their searches since there is a lot of evidence for an illegal radio transmitter.
posted by smackfu at 11:33 AM on May 21 [6 favorites]

Before everyone freaks out, bear in mind that the FCC Enforcement Bureau probably has less than a dozen actual field agents nationwide, and are notoriously lax at enforcing anything that's not a pretty egregious violation of the Rules (i.e. running a pirate radio station). From people I know who have worked with them (generally trying to get them to take some sort of action against a known source of interference), they're more Super Troopers than the gestapo.
posted by Kadin2048 at 11:37 AM on May 21 [1 favorite]

I believe the Immigration & Naturalization Service has the power to search any vehicle within 100 air miles of the US border.
posted by BlueMetal at 11:54 AM on May 21 [3 favorites]

Yeah, the FCC generally doesn't act unless some third party makes a bunch of complaints (such as a commercial broadcast station, public service licensee, amateur operator, etc). Pirate radio stations sometimes get noticed, but only after achieving widespread publicity.

So you generally need to (1) bother a licensed operator, (2) repeatedly, over the course of months / years, before agents show up at your place.
posted by ryanrs at 12:01 PM on May 21

I believe the Immigration & Naturalization Service has the power to search any vehicle within 100 air miles of the US border.

That's a much more disturbing situation than the FCC's power to examine my cordless phone.
posted by Kirth Gerson at 12:06 PM on May 21 [1 favorite]

Especially considering what the INS ICE has been doing with that power.
posted by Kirth Gerson at 12:09 PM on May 21 [1 favorite]

Relax gang, we got a constitutional law scholar in the White House.

It's all gonna be okay now.
posted by codswallop at 12:17 PM on May 21

we've got guns, twittered executions and liquor!

I was feeling pretty bad about things until I read this. There really is a bright side to look on. Thanks!
posted by adamdschneider at 12:17 PM on May 21

delmoi: "Well, if the law was written in 1934 they probably weren't expecting almost everyone to have FCC licensed radio transmitters in every house. I know there were radio hobbyists back then but were those 'licensed transmitters'?"

Amateur radio operators first had to get licenses under the Radio Act of 1912 in order to use any of the frequencies that were then thought to be useful for long-distance communication. (Today this is only a very small fraction of the very lowest part of the radio spectrum.) Initially no licenses were required for wavelengths of 200m and shorter, but over time this was tightened. By 1934 I believe most amateurs would have held licenses. More history is available here if you're interested.

The modern 'license-free' bands, including CB, FRS, ISM, and others, came along much later. They are not free-for-all bands, either: the tradeoff for not having to obtain a license from the FCC yourself is a requirement to use only approved, standard-design equipment. E.g., it is not legal to create your own CB radio and use it; the requirements for CB involve using approved equipment that enforce power and transmission-frequency limits. However if you get an amateur radio license, you can operate in the band next door (10m instead of 11m CB) with a homebuilt radio, since you have been licensed. Same with 2.4 GHz ISM: no license is required, but you have to use approved gear that enforces maximum power and other limits. If you want to go homebrew or modify the equipment, you're legally obligated to get a license and use it in the amateur band instead.

Although there's always been a maximum frequency horizon beyond which the FCC just doesn't bother to regulate (I think it might be 275GHz right now), or regulates very minimally, that horizon has moved steadily upwards with technology and has generally encompassed all but the most experimental uses of the spectrum.
posted by Kadin2048 at 12:18 PM on May 21 [5 favorites]

We've Got Guns, Twittered Executions and Liquor!

I would purchase products made by the sponsors of this television programme.
posted by CynicalKnight at 12:31 PM on May 21

At which point the FCC should have no problem getting warrants for their searches

The process is there for a reason.
posted by Civil_Disobedient at 12:33 PM on May 21 [2 favorites]

Before everyone freaks out, bear in mind that the FCC Enforcement Bureau probably has less than a dozen actual field agents nationwide, and are notoriously lax at enforcing anything

Somehow knowing that we're relying on incompetence and a lack of resources to protect our civil rights does nothing to reassure me.
posted by JaredSeth at 12:50 PM on May 21 [9 favorites]

they're more Super Troopers than the gestapo.

Says you! I saw that documentary about how they arrested that one youth trying to raise awareness about the improprieties being committed by the leadership at his local educational facility.

Sure, he ran a pirate radio station, but he was a voice of his people!

*raises fist*

Talk Hard!
posted by quin at 12:54 PM on May 21 [2 favorites]

Before everyone freaks out, bear in mind that the FCC Enforcement Bureau probably has less than a dozen actual field agents nationwide, and are notoriously lax at enforcing anything

No way, man, I saw Pump Up The Volume and those guys were on Christian Slater faster than flies on dog poop.

PS. TALK HARD
PPS. Whatever that means.
posted by Spatch at 1:39 PM on May 21

I believe the Immigration & Naturalization Service has the power to search any vehicle within 100 air miles of the US border.

Looking at a map, it looks like most of the big cities in the USA fall within that range. Useful.
posted by anonymisc at 1:39 PM on May 21

1) The FCC aren't abusing this power. They are using it to investigate pirate radio stations.

Oh really? From the Wired article:

But if inspectors should notice evidence of unrelated criminal behavior — say, a marijuana plant or stolen property — a Supreme Court decision suggests the search can be used against the resident. In the 1987 case New York v. Burger, two police officers performed a warrantless, administrative search of one Joseph Burger’s automobile junkyard. When he couldn’t produce the proper paperwork, the officers searched the grounds and found stolen vehicles, which they used to prosecute him. The Supreme Court held the search to be legal.

posted by vsync at 2:53 PM on May 21

Let's be honest here. It's a 1934 law and a 1987 court case. If they didn't abuse their power during the Bush administration, they're never going to.
posted by smackfu at 2:58 PM on May 21

What agreement would you have signed? Laws cover us, regardless of how we feel about them; this isn't a contract dispute with a private ISP.

Well, I guess the first thing to do is ask the question: Do *REGULATIONS* promulgated by an *appointed* officer of the US Government count as *LAWS* which are, of course, voted on in this Constitutional Republic, by our duly elected Legislators.

In THEORY, we've elected these Legislators, giving them the authority to pass Laws, violations of which lead to criminal sanctions.

No-one elected the Commissioner of the FCC, so I wonder if his "Regulations" are anything I need to concern myself with.

Now, if back in, say, 1980 I signed an application for a license for a CB radio -- that would be a whole different story... In theory, there, I've agreed to abide by the Regs.

Same situation as Motor Vehicles. We've agreed to the Regs when we signed our Driver's License Application (and/or Motor Vehicle Registration ) ...
posted by mikelieman at 3:25 PM on May 21

IRS regulations are also imaginary and you shouldn't follow them.
posted by smackfu at 3:51 PM on May 21

IRS regulations

"The federal tax code with its 44,000 pages, 5.5 million words, and 721 different forms is a patchwork maze of complexity and a testament to confusion over common sense." - Jim DeMint
posted by rough ashlar at 4:07 PM on May 21

codswallop: "Relax gang, we got a constitutional law scholar in the White House."

Eponysterical.

Or, to put it another way, a Constitutional law scholar who wants to "construct a legtimate legal framework" to suspend habeas corpus is my idea of a piss-poor Constitutional law scholar.
posted by Joe Beese at 4:35 PM on May 21 [1 favorite]

If they didn't abuse their power during the Bush administration, they're never going to.

And they're wacky and fun, like those guys in Super Troopers! I say we look the other way and keep whistling.
posted by Blazecock Pileon at 6:23 PM on May 21

After reading all of the stuff linked to this post and the Wired blog post it links to, it appears to be completely empty hype and a bit of a misrepresentation. There isn't any kind of search of anyone's premises going on that I can see; all any of these court cases or FCC policies are doing is requiring you to allow the FCC to inspect your equipment.

If an FCC agent knocks on your front door and asks you about your cordless phone you don't have to let him into your house, all you have to do is hand him your cordless phone. Or from the looks of it you could even say "please provide me with a date and time for an office appointment" or "here's my lawyer's card, please furnish to him adequate evidence of cause for inspection." According to the Wired post people are actually completely ignoring it and just moving their radio transmitters to someone else's house each time someone from the FCC leaves a notice on their door.
posted by XMLicious at 8:02 PM on May 21 [1 favorite]

I believe the Immigration & Naturalization Service has the power to search any vehicle within 100 air miles of the US border.

If the same applies to the Canadian side of the border, I suspect that would mean some 80% of Canadians would be subject to inspections. Most of us are that close to the border!
posted by five fresh fish at 8:12 PM on May 21

mikelieman: Well, I guess the first thing to do is ask the question: Do *REGULATIONS* promulgated by an *appointed* officer of the US Government count as *LAWS* which are, of course, voted on in this Constitutional Republic, by our duly elected Legislators. ... No-one elected the Commissioner of the FCC, so I wonder if his "Regulations" are anything I need to concern myself with.

Say what? Regulations are law. Federal regulations are federal law, which the Constitution designates as the supreme law of the land. The legal authority enjoyed by duly promulgated federal regulations has nothing to do with whether you signed a contract or agreed to them. Why? Because your elected representatives directed the administrative agency to enforce a law, and to promulgate regulations pursuant to some "intelligible principle" articulated in that law. The FCC's authority to promulgate regulations was granted by Congress in the Communications Act of 1934 (and later amendments). Your representatives told the FCC to come up with rules to govern the airwaves, and told everyone to abide by the rules formulated by the FCC. See 47 U.S.C. § 154(i) ("The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions. "). So it really was your elected legislators who determined that the FCC regulations were binding on you. And they are. IANYL, TINLA.
posted by dilettanti at 2:25 PM on May 22 [1 favorite]

Or from the looks of it you could even say "please provide me with a date and time for an office appointment" or "here's my lawyer's card, please furnish to him adequate evidence of cause for inspection."

Not according to the FCC FAQ:

Q: The FCC Agent said that I had to allow inspection of my radio station without unnecessary delay. What does "without unnecessary delay" mean?

A: Immediate on-the-spot inspections are generally necessary. In most cases, any delay can result in changed conditions of the transmitting equipment or its operation, adversely affecting the efficacy of the inspections. For that reason, Agents cannot return at a later time to accommodate the operator, cannot wait for the operator to make any adjustments to the equipment, and cannot spend time repeating the reasons for the inspection.


Q: Can I have my attorney present during the inspection? Can I make the agent wait to start the inspection until my attorney is present?

A: You may have your attorney present during the inspection; however, there is no constitutional right to have your attorney present. Therefore, you may not make the agent wait until your attorney arrives. Making the agent wait for your attorney conflicts with the "unnecessary delay" requirement discussed earlier.
posted by curie at 3:03 PM on May 22

curie, if they were really asserting the ability to make warrantless searches for cordless phones (as the OP claims) I don't think they'd be talking about only "unnecessary" delays. Sure, you or your attorney have to demonstrate that the delay is necessary, but I would kind of expect that.
posted by XMLicious at 3:32 PM on May 22