FCC Claims Power to Inspect Any Home with Wi-Fi

Published August 1, 2009

A little-known declaration by the Federal Communications Commission could result in a knock on your door if you have a wireless router, cordless phone, remote car-door opener, baby monitor, or cell phone in your house—a broad sweep of targets that includes just about every American.

The FCC’s power came to attention this spring when an agent investigating a pirate radio station in Boulder, Colorado left a copy of a 2005 FCC inspection policy on the door of a residence hosting an 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.

FCC Defends Policy

“Anything using RF [radio frequency] energy—we have the right to inspect it to make sure it is not causing interference,” says FCC spokesman David Fiske. That includes devices such as wi-fi routers that use unlicensed spectrum, Fiske said.

The FCC claims it derives its warrantless search power from the Communications Act of 1934, though the constitutionality of the claim has gone untested in the courts.

The FCC hasn’t made a practice of knocking on residential doors, but that’s largely because the commission had little to do with average citizens for most of the past 75 years, when home transmitters were largely reserved to ham-radio operators and CB radio aficionados.

Today, by contrast, nearly every household in the United States has multiple devices using radio waves, and they fall under the FCC’s purview, making the commission’s claimed authority ripe for a court challenge.

Resisting the FCC’s Power

“I think the issue is: Can the FCC attach a condition to the use of the airwaves and come into a house, and I think the answer is ‘no,'” said Harold J. Krent, dean of the Chicago-Kent College of Law. “Here the FCC is claiming a broader power to search based on the spectrum, and that won’t hold.

“The FCC could possibly search if they were finding particular radio stations were used illegally to transmit something like drug information,” Krent added. “The authority they are claiming here is too broad and would not be supported by the courts.”

‘Law Should Be Updated’

“This was obviously an old law,” said Jeff Kagan, a telecom and wireless industry analyst based in Atlanta, Georgia. “As technology grows and ends up in every home, the law should be updated.”

“There have been a number of cases that held a person does not have to permit the government to make an unannounced inspection, unless it is a highly regulated business such as a radio station,” Krent said. “It would seem the FCC should not be threatening to search anyone just because they are using the spectrum. That would be an abuse of power.”

The courts won’t get involved unless the FCC does take an action like this on a regular citizen, Krent said.

Phil Britt ([email protected]) writes from South Holland, Illinois.