:: Quote ::

    PUBLIC NOTICE

    FEDERAL COMMUNICATIONS COMMISSION

    COMMON CARRIER PUBLIC MOBILE SERVICES INFORMATION

    October 2, 1991
    Report No. CL-92-3

    CHANGING ELECTRONIC SERIAL NUMBERS ON CELLULAR
    PHONES IS A VIOLATION OF THE COMMISSION'S RULES


    It has come to the attention of the Mobile Services
    Division that individuals and companies may be altering
    the Electronic Serial Number ( ESN)  on cellular phones.

    Paragraph 2.3.2 in OST Bulletin No. 53 (Cellular System
    Mobile Station - Land Station Compatibility Specification,
    July, 1983) states that "[a]ttempts to change the serial
    number circuitry should render the mobile station
    inoperative." The 1981 edition of these compatibility
    specifications (which contains the same wording) was
    included as Appendix D in CC Docket 79-318 and
    is incorporated into Section 22.915 of the Commission's
    rules.

    Phones with altered  ESNs do not comply with the
    Commission's rules and any individual or company operating
    such phones or performing such alterations is in violation
    of Section 22.915 of the Commission's rules and could be
    subject to appropriate enforcement action.

    Questions concerning this Public Notice should be addressed
    to Steve Markendorff at 202-653-5560 or Andrew Nachby at
    202-632-6450.

:: End Quote ::

The staff has informally opined (although the Commission has not yet
formally ruled) that the foregoing prohibits, in addition to the direct
cloning and/or manipulation of the ESN, many of the other schemes to get
around it by "intercepting" and "translating" the ESN. They have proposed
the following rule which will likely be formally adopted sometime in 1994: 

:: Quote ::

    22.919 Electronic serial numbers.

    The Electronic Serial Number (ESN) is a 32 bit binary
    number that uniquely identifies a cellular mobile
    transmitter to any cellular system.  Each mobile
    transmitter must have a unique ESN and must comply
    with the following specifications.

        (a) The ESN must be factory set and must not be
        alterable, transferable, removable or otherwise able
        to be manipulated in the field.

        (b) The ESN host component must be permanently attached to
        a main circuit board of the mobile transmitter and the
        integrity of the unit's operating software must not be
        alterable.  The ESN must be isolated from fraudulent
        contact and tampering.  If the ESN host component does
        not contain other information, that component must not
        be removable, and its electrical connections must not be
        accessible.  If the ESN host component contains other
        information, the ESN must be encoded using one or more
        of the following techniques:

            (1) multiplication or division by a polynomial;

            (2) cyclic coding;

            (3) the spreading of ESN bits over various
            non-sequential memory locations.

        (c) Cellular mobile equipment must be designed such that
        any attempt to remove, tamper with, or change the ESN
        chip, its logic system, or firmware originally programmed
        by the manufacturer will render the mobile transmitter
        inoperative.

:: End Quote ::

As far as staff is concerned, the proposed rule merely clarifies what is
already the law, but they feel that the clarification in necessary because
many in the industry are coming up with so many novel ways to accomplish
the same result in clever ways. 

This is not something to be taken lightly for two reasons:

    (1) the FCC has gotten rather aggressive in recent years in the number
    and size of forfeitures (read "fines") imposed for (even relatively
    minor) rules violations, and

    (2) doing something like this when your carrier does not authorizes
    subjects you to the risk that your cellular unit will be negatively
    listed (and therefore rejected as a fraudulent unit).

Note, however, that the staff does _not_ consider it to be a violation for
the cellular carrier to offer this capability by doing some programming at
the cellular switch that associates a single phone number with two or more
_different_ ESN's.  Apparently some carriers are starting to do this. 

--
 Bob Keller   Robert J. Keller, P.C.           Internet: rjk@telcomlaw.com
 ----------   Federal Telecommunications Law   Telephone:  +1 301.229.5208
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