Pop quiz: You own a movie theater, and your ticket sales have been heading south. What should you do?
(a) Show better movies.
(b) Use real butter on the popcorn.
(c) Start jamming the audiences' cell phones, so they can't take calls during the show.
I think most of my friends would say (d): All of the above. But it's the third option that might come before the Federal Communications Commission, which presently prohibits the "operation of transmitters designed to jam or block wireless communications." (Unless you're the government, in which case you're free to drop a cone of cell-phone silence over, say, a kidnapper with hostages.) John Fithian is the president of the National Association of Theater Owners, or NATO; Reuters reports that he attacked the country's phone-wielding boors in a speech this month at ShoWest, an annual conference for people in the cineplex and cinema businesses. "I don't know what's going on with consumers that they have to talk on phones in the middle of theaters," he complained. If the problem persists, he added, his group will petition the FCC to let its members jam phones during screenings.
Playing Warsaw Pact to Fithian's NATO is CTIA—The Wireless Association. (The initials used to stand for "Cellular Telephone Industry Association," then "Cellular Telecommunications and Internet Association." Now they don't stand for anything.) Joe Farren, the group's director of public affairs, says phone-jamming is a safety hazard. "You're risking a wireless user's ability to make emergency calls," he says. "To foreclose on that ability for a life-threatening situation to be reported as it happens—we just don't think that makes any sense."
I'm tempted to interject that you could say the same thing about someone who just doesn't own a cell—Shouldn't the FCC require us all to carry a phone? It just doesn't make sense not to have one handy!—but he's actually making a decent point. If your body goes into convulsions rather than withstand one more minute of Crash, the guy across the aisle might be able to call 911 even if your date left her telephone at home.
Farren also argues that it's possible to use a phone without violating theater etiquette if you set the thing on vibrate and take the call outside. But what, I ask him, should theater owners do about patrons less polite about their phone use? "Kick them out," he replies.
He makes some good points, and if I owned a theater I'd be inclined to follow his advice. But he hasn't persuaded me that his advice should continue to be the law. One of the advantages to having a lot of theaters with a lot of owners scattered all over the country is that individual outfits can experiment: You can jam phones here, hire a bouncer there, and announce in another place that cell phones will work during matinees only. It's flexible, decentralized, a way to suss out the problems and advantages of different approaches—all the benefits that are supposed to follow from private property.
But whose property gets priority? There's another argument against cell phone jamming, summarized (though not necessarily endorsed) by David Bennahum in Slate in 2003: "Since commercial enterprises have purchased the rights to the spectrum…jamming their signals is a kind of property theft."
Formally, the electromagnetic spectrum is owned by the state; the companies who lay claim to segments of it are merely licensed to use those territories, and the government reserves the right to revoke their licenses. Over the last few decades, though, those permits have looked more and more like property: It's easier than ever to buy and sell the right to use a particular strip of the spectrum. The general feeling among free-market economists is that they should become full-fledged property rights. In that case, jamming a phone would indeed look a lot like theft, or at least trespass.
But spectrum rights aren't the only things you can possess. If you own a theater, restaurant, funeral parlor, or other institution with an interest in quieting phones, you have some physical property; and, despite various regulatory intrusions, you're generally understood to be entitled to restrict your guests' behavior. The government can't stop you from asking everyone to check their phones at the door—so why can't you just silence the things? You'd have to avoid significant leakage into the area beyond your turf, of course: You don't have a right to jam the conversations outside your theater. And you should post the fact that the jamming device is on, so people awaiting pressing calls can make an informed decision about whether to patronize your business. But is the jamming itself objectionable?
Advocates of private spectrum rights have spent surprisingly little time thinking about such conflicts between physical and ethereal property. One exception is Tom W. Bell, a professor of law at Chapman University. In "The Common Law in Cyperspace," a 1999 article for the Michigan Law Review, Bell came down on the side of physical ownership, asking: "Suppose, for example, that on your land you used, for private wireless communications, a frequency owned by a local radio station. If your use did not interfere with your neighbors' reception of that station, on what grounds could the supposed owner of the frequency object to your use?" One interesting case along similar lines involves Roy Neset, a farmer in North Dakota who set up an unlicensed FM station to retransmit talk shows to himself while he rode around in his tractor. Neset's signal didn't interfere with anyone else's broadcasts, but even if it had, the interference would have been limited to his own property. Is that a transgression?
I don't think it is, but the 8th U.S. Circuit Court of Appeals disagreed, and the government shut down Neset's operation. Under a more libertarian system, NATO's members might claim the right to jam a phone in the name of private property. But in a world where Washington heavily restricts what you can do with both solid and spectral possessions, the theaters will have to ask the FCC to exempt them from the rules. If they get what they want, obnoxious moviegoers will have to go back to annoying us the old-fashioned way: by talking to the people sitting next to them.