FCC Adopts Item to Help Target Contraband Wireless Devices in Correctional Facilities

March 23, 2017–The FCC today adopted a report and order and further notice of proposed rulemaking to assist correctional facilities in deploying equipment that targets contraband wireless devices used by inmates. The devices have been increasingly use for criminal activities, including operating drug operations and ordering the murders of people outside of prisons and jails.“ The rules adopted today will simplify the process for CIS [contraband interdiction system] operators to obtain … FCC authorization, allowing for quicker and easier deployment of these systems in correctional facilities,” the FCC said in a news release.

“The rules adopted today will streamline the process so CIS operators can obtain authorizations faster and with fewer filings,” it added. “A CIS operator must have arrangements with every carrier providing service in its area in order for the system to be effective.  The rules will require wireless carriers to cooperate with CIS operators and correctional facilities in a timely manner.”

In addition, the FCC “will designate an Ombudsperson to serve as the single point of contact for CIS operators and wireless carriers.”

Among other things, the order includes provisions for expedited approval of special temporary authority and spectrum leasing arrangements and requires wireless carriers to negotiate in good faith. In the further notice, the FCC seeks comments on whether it should take additional measures to address the contraband devices in prisons and jails, including requiring carriers to identify and disable devices. The Commission also solicits views on whether other technological solutions can help stop contraband devices, including wireless signal quiet zones and beacon-based technologies.

FCC Chairman Ajit Pai and Commissioner Mike O’Rielly voted for the item in GN docket 13-111, while Commissioner Mignon L. Clyburn approved in part and concurred in part.

The item adopted today follows up on a notice of proposed rulemaking approved in 2013 that sought comments on proposed changes to the FCC’s regulations to enable the development of technological solutions to combat contraband wireless devices (TRDaily, May 1, 2013). The NPRM came after efforts by advocates of cell jamming failed to convince Congress to change the 1934 Communications Act, as amended, which restricts the use of jamming technology to federal government entities.

At today’s FCC meeting, Robert Johnson, a former South Carolina correctional officer who was shot six times in 2010 in a hit ordered by a gang-member inmate, said the passage of legislation allowing cellphone jamming in correctional facilities would protect officers and the public. He criticized the wireless industry for opposing jamming, adding, “I personally believe that it has something to do with money.”

“The cellphone industry does not want any technology to advance. Instead they push managed access … which costs too much, and some inmates have already learned how to defeat,” Mr. Johnson added.

He also said that beacon-based technology, which shuts down the entire system, “seems to be a workable technology,” but he said he would not be surprised if the industry opposes that as well. “How many more innocent people have to die or get hurt before the cellphone industry decides to become a good corporate citizen?” Mr. Johnson asked.

FCC Chairman Ajit Pai stressed that today’s action “is not the end of the road.  There’s a long way to go, and more the FCC can and should do.  That’s why we seek comment on several other potential solutions to this problem, from requiring wireless carriers to identify and disable contraband phones in prisons to exploring the viability of using beacon technology that creates a restricted zone in a correctional facility to stop contraband phones from working. It is important to note that the FCC cannot solve this problem by itself.  So as we move forward, we will continue to work with all stakeholders — government and private sector alike — to help solve this problem.  We’re going to get there, working in good faith with everyone, so that one day, we won’t hear any more stories like Captain Johnson’s.”

“Contraband wireless devices are illegal, and are a safety threat, both to those behind, and outside prison walls. I wholeheartedly support this Commission doing all we can to help law enforcement combat the serious threat these devices, in the wrong hands, enable,” said Ms. Clyburn.

“The costs for implementing these systems, however, should be appropriately assigned and the economic burdens should not fall squarely on those families who are not at fault. To that end, I asked the Chairman to require CIS operators to certify, as part of the application process, that the costs for the service would not be passed through to consumers of inmate calling services. My request was rejected, and for that reason alone, I must concur in part,” she said.

“I also asked the Chairman to make reference to, in the Order, the record evidence about the potential impact deployment of CISs may have on the rates inmates and their families pay to keep in touch. While I am disappointed that the Chairman did not acknowledge the first request, I appreciate that he and Commissioner O’Rielly agreed to the latter,” the Commissioner added. “I am also grateful that my colleagues agreed to my request, that the Commission institute some form of notice to consumers, who reside near correctional facilities that choose to deploy CISs.”

The Wright petitioners, who more than 15 years ago asked the FCC to reduce high inmate calling service (ICS), rates, had urged the FCC to ensure that the contraband cellphone item doesn’t lead to costs for the deployment of equipment to detect contraband devices being passed onto non-offending inmates and their families (TRDaily, March 10).

“I am generally supportive of, and will approve, our efforts to facilitate the processes for implementing contraband interdiction systems (CIS),” Mr. O’Rielly said. “Streamlining and expediting the necessary Commission approvals for such systems makes sense.  Correctional facilities should get quick action on their requests if they decide to implement a CIS.  I will admit, however, that I am not clear as to how often these processes will be used.  It seems like these systems are expensive and that there are alternatives, such as metal detectors, that are cheaper and potentially more effective at detecting all contraband, including cellphones. Regardless, these systems may be a viable option for some correctional facilities and it remains their choice as to whether to pay the requisite costs and install these systems.

“I do have reservations about one provision in the item – the requirement that licensees negotiate in good faith with CIS providers and, if they fail to come to a timely agreement, a CIS provider can file for special temporary authority (STA),” he added. “Commission staff then has the right to grant the STA, despite not having licensee consent, if they find there was a lack of good faith.  Since the order notes that wireless providers have been collaborating with entities seeking authorizations for CIS deployments, I am not sure this requirement is really necessary.  But, my biggest concern is the precedent we are setting without clear statutory authority and how this language could be implemented going forward.  While I have no concerns about the intentions of the people in this room, we have seen in the past how well-intentioned language and policies can be reinterpreted and expanded over time.  Hopefully, we will not see any unintended consequences arise from this provision a Commission or two down the road.”

Mr. O’Rielly also said he appreciated “that edits were accepted, however, to provide licensees more time to respond if a CIS provider files an STA alleging that a licensee was not negotiating in good faith.  Additionally, edits were added to clarify who is responsible for implementing a request from a PSAP that it does not wish to receive calls from a certain correctional facility and to seek further comment on whether and how licensees should provide CIS providers with advance notification if they implement spectrum or technology changes.”

He also said that some of the issues raised in the further notice concern him. “These include: the liability issues that wireless providers may face to disable phones that have been identified as being within a prison, the burdens of creating quiet zones in and around correctional facilities, and the possibility that the Commission would mandate beacon technologies, which is not a technology neutral approach,” he said. “Regardless of these concerns, as always, I will keep an open mind and will work with my colleagues, Commission staff and all interested parties on this issue going forward.  Lastly, I do want to make one position crystal clear:  no matter how this proceeding moves forward, I will not support or approve of any form of jamming technologies.”

A change from the draft item that was originally circulated earlier this month (TRDaily, March 2) involves a provision that would have required wireless carriers to notify CIS operators at least 90 days before adding a new frequency band or air interface technology. T-Mobile US, Inc., had recently asked the FCC to defer action on that issue until there was a more complete record (TRDaily, March 20). The FCC now will seek comments on that matter in the further notice, reporters were told by staff at a news conference after today’s meeting.

CTIA said it welcomed today’s FCC action. “CTIA and the wireless industry appreciate the positive steps that the Commission is taking to stop the use of contraband phones in correctional facilities,” said Scott Bergmann, the trade group’s vice president-regulatory affairs. “The wireless industry has worked closely with the corrections community and solutions providers to help address this problem, and today’s order should streamline the process for deploying effective tools. We also believe that the FCC asks the right questions in its further notice and are pleased it does not propose the use of jamming technologies, which Congress and the FCC have repeatedly affirmed as unlawful due to the serious threats to public safety.”

The president of CellAntenna Corp., which manufactures equipment to tackle the problem of contraband wireless devices, commended the FCC for adopting today’s item. But he said that getting cooperation from wireless carriers to deploy the technology to detect contraband devices or an STA from the FCC generally have not been a problem. The roadblock has been a lack of funding by correctional facilities.

“Where’s the money to fund these items? Nobody has it,” said Howard Melamed, whose efforts to convince Congress to authorize jamming by non-federal government entities failed. “The cost of doing the licensing is minor compared to the total cost of the system.”

Tecore Networks, which also manufactures equipment to target contraband devices, said it “is pleased with the FCC order today to expedite the approval process for Cellular Interdiction System (CIS) companies. For a number of years, Tecore has worked with the FCC, Commercial Carriers and Corrections leaders gaining insight to the complications and invaluable rewards of deploying Managed Access Technology into correctional institutions. As the first rural and urban deployments in the United States, Tecore’s knowledge and results have certainly helped shape the regulations approved today. “Requiring carriers to disable contraband devices as part of the further notice the FCC proposed would be a tasking approach,” the company added. “Not only would the process be long and cumbersome but is an after the fact solution. As stated today by the Commissioner, Inmates have countless hours to plan and thwart law enforcement objectives. By taking away their devices or disabling them, it would only prevent illicit communications for a short period of time until the inmate would gain access to another device. Preventing illicit communications before they occur by controlling the network in which the device operates on continues to be the optimal solution.

“In addition, we believe Commissioner O’Rielly’s emphatic comment to which he would in no way support jamming technologies was a step in the right direction,” Tecore added. “Managed Access is by far the safer and smarter choice which allows communications from pre-approved devices and E911 callers. We stand behind our iNAC Managed Access Solution, being the industry pioneer, covering all technologies, channels and frequencies as rapidly as they arrive on the market. We are excited to continue this journey of delivering a critical component for the Correction Community in the fight against illicit cellular communications rising in their facilities.”

The American Correctional Association did not respond to a request for comment today on the FCC’s item.

Btu South Carolina Department of Corrections Director Bryan Stirling said in a statement that his department is “still advocating for the cell phone jamming technology, which would be instrumental in our daily fight against contraband. The ability to block cell phone signals at our institutions would render contraband cell phones obsolete, which would make our institutions safer and also improve public safety. “Contraband is a significant problem for corrections departments across the country. From a financial standpoint, we spend a lot of tax dollars trying to locate and confiscate contraband in our institutions every day, but we do so for safety and security reasons. Captain Johnson is a prime example why stopping contraband, by any means necessary, is our top priority,” said Mr. Stirling, whose department was an early supporter of jamming authority. “We feel encouraged by the FCC action today and are hopeful that positive changes are on the horizon.” – Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily