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 . . . .