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When the FCC Visits, It Doesn't Bother to Knock

If you have a wireless router, a cellphone or a cordless phone in your office or home, the Federal Communications Commission says it has the right to walk right in without a warrant at any time of the day or night in order to inspect it.

That news comes via Wired's Threat Level blog. It quotes FCC spokesman David Fiske, who says, "Anything using RF energy -- we have the right to inspect it to make sure it is not causing interference." That includes devices such as Wi-Fi routers that use unlicensed spectrum, he says.

In fact, the FCC explicitly spells out this policy with a handy FAQ on its own Web site.

Q: Why must operators of radio frequency devices allow the FCC to inspect their equipment?

A: The Commission must ascertain essential facts pertaining to the operation of a station which may be vital to the resolution of a number of questions, including interference problems involving public safety. For this reason, the FCC must be able to check all covered equipment that have the potential to emit radio frequencies. Section 303(n) of the Communications Act gives the FCC this authority.

Q: The FCC Agent standing at my door does not have a search warrant, so I don't have to let him in, right?

A: Wrong. Search warrants are needed for entry involving criminal matters. One of the requirements as a licensee, or non-licensee subject to the Commission's Rules, is to allow inspection of your radio equipment by FCC personnel. Whether you operate an amateur station or any other radio device, your authorization from the Commission comes with the obligation to allow inspection. Even radio stations licensed under a "blanket" rule or approval, such as Citizen's Band (CB) Radio, are subject to the Commission's inspection requirement.

Not surprisingly, some lawyers question the FCC on this. "It is a major stretch beyond case law to assert that authority with respect to a private home, which is at the heart of the Fourth Amendment’s protection against unreasonable search and seizure," Electronic Frontier Foundation lawyer Lee Tien tells Threat Level. "When it is a private home and when you are talking about an over-powered Wi-Fi antenna -- the idea they could just go in is honestly quite bizarre."

Constitutional law expert, George Washington University professor and blogger Orin Kerr also has his doubts. "The Supreme Court has said that the government can’t make warrantless entries into homes for administrative inspections,” Kerr said.

The FCC's questionable policy made the blogosphere airwaves after an FCC agent investigating a pirate radio station in Boulder, Colo., left a copy of the policy on the door of a residence hosting the unlicensed 100-watt transmitter. "Whether you operate an amateur station or any other radio device, your authorization from the Commission comes with the obligation to allow inspection," the statement said.

The policy is silent on whether you are also obliged to serve the FCC agents coffee.

Posted by Robert J. Ambrogi on May 22, 2009 at 01:37 PM | Permalink | Comments (2)

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