I. The Statutory Framework

Title III of the Communications Act of 1934 opens with a statement of purpose: “to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority.” The operative prohibition follows at 47 U.S.C. § 301:

“No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio… except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter.”¹

Three features of this sentence merit attention. First, the prohibition reaches “any apparatus,” a term the statute does not limit to apparatus manufactured for communication. Second, the prohibited act is stated in the disjunctive: “energy or communications or signals.” The transmission of energy alone satisfies the prohibition; no message need be conveyed, no signal need be modulated, no audience need exist. Third, the word “energy” appears before the word “communications.” Congress listed energy first.

The statute then enumerates six jurisdictional circumstances, (a) through (f), under which the prohibition applies. Subsection (d) is the broadest: it reaches operation “within any State when the effects of such use extend beyond the borders of said State, or when interference is caused by such use or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications, or signals from and/or to places beyond the borders of said State.”¹ A transmission that never leaves a kitchen falls within federal jurisdiction the moment it interferes with a radio communication to or from beyond the state’s borders. The interference, as Section V documents, is not hypothetical.

II. The Apparatus

At the heart of every domestic microwave oven is a vacuum tube called a magnetron. The magnetron converts electrical current into electromagnetic waves at a frequency of 2,450 megahertz for most conventional ovens, and this microwave energy is transferred to the oven cavity through a waveguide section.² Health Canada’s occupational health guidance, describing the same device, states the physics plainly: “Microwaves are a form of radiofrequency (RF) electromagnetic energy.”²

The frequency is 2.45 gigahertz, or 2,450,000,000 cycles per second. The electric field at any point inside the cooking chamber fluctuates back and forth 2.45 billion times each second, pulling electrically charged particles first one way and then the other.³ These are radio waves. They are, as the physics texts note, “similar to normal radio waves, except that they have a higher frequency.”³ A higher frequency does not make them less radio. It makes them more radio, more often.

The power is not trivial. Domestic ovens typically generate between 700 and 1,200 watts of microwave output.⁴ For comparison, a licensed FM broadcast station operating at the maximum power permitted to most classes transmits with an effective radiated power in the tens of thousands of watts, but it does so from a tower, through an antenna, toward an audience. The microwave oven transmits approximately one thousand watts from a countertop, through a waveguide, toward a burrito. The statute does not distinguish between the two on the basis of culinary intent.

The device even identifies itself. Under 47 CFR § 18.212, equipment authorized under the Commission’s Supplier’s Declaration of Conformity must carry a compliance statement “identical or similar to” the following: “This device complies with Part 18 of the FCC Rules.”⁵ The oven announces, on its own chassis, the part of the rules under which it operates. It does not announce a license, because it does not hold one.

III. The Frequency Assignment

The Commission’s rules designate specific bands for Industrial, Scientific, and Medical equipment. At 47 CFR § 18.301, the table of ISM frequencies lists 2,450 megahertz with a tolerance of plus or minus 50 megahertz.⁶ The magnetron’s operating frequency sits at the exact center of this designated band.

The technical standards for the band are remarkable. At 47 CFR § 18.305(a), the Commission provides: “ISM equipment operating on a frequency specified in § 18.301 is permitted unlimited radiated energy in the band specified for that frequency.”⁶ Unlimited. The Commission has considered how much radiofrequency energy a microwave oven may radiate, and its answer is that there is no amount it may not radiate, provided it stays within plus or minus 50 megahertz of 2,450.

The Commission has also classified the device. At 47 CFR § 18.107(g), “Consumer ISM equipment” is defined as “a category of ISM equipment used or intended to be used by the general public in a residential environment, notwithstanding use in other areas,” and the regulation gives examples: “domestic microwave ovens, jewelry cleaners for home use, ultrasonic humidifiers.”⁷ The microwave oven is the first example the Commission thought of. It is the paradigmatic consumer ISM device: a radiofrequency transmitter the general public operates in a residential environment.

The Food and Drug Administration agrees about what the device is. At 21 CFR § 1030.10(b)(1), the FDA defines a microwave oven as “a device designed to heat, cook, or dry food through the application of electromagnetic energy at frequencies assigned by the Federal Communications Commission in the normal ISM heating bands ranging from 890 megahertz to 6,000 megahertz.”⁸ Note the phrase: “frequencies assigned by the Federal Communications Commission.” The sister agency acknowledges, in its own definitional regulation, that the oven operates on FCC-assigned radio frequencies. The FDA regulates the oven as a radiation-emitting electronic product. The FCC regulates it as ISM equipment. Neither agency has issued it a station license.

IV. The License That Does Not Exist

Section 301 requires operation “with a license in that behalf granted under the provisions of this chapter.” The question is whether the equipment authorization that every microwave oven carries satisfies this requirement. The Commission has answered the question itself, in the negative, at 47 CFR § 18.111(a):

“Persons operating ISM equipment shall not be deemed to have any vested or recognizable right to the continued use of any given frequency, by virtue of any prior equipment authorization and/or compliance with the applicable rules.”⁹

An equipment authorization is not a license. The rule says so. It confers no vested right and no recognizable right to the frequency. It is, at most, permission for the equipment to exist. Section 301 does not ask whether the equipment may exist. It asks whether any person may “use or operate” the apparatus for the transmission of energy by radio, and it answers that no person may do so without a license granted under the chapter. The authorization the ovens hold is, by the Commission’s own text, something other than a license.

The Commission maintains a licensing database in which every station license it has ever granted is recorded. No station license has ever been issued to a microwave oven. No call sign has ever been assigned to one. The ovens transmit anyway, approximately three minutes at a time, at approximately one thousand watts, on an FCC-assigned frequency, holding nothing but a compliance statement and a rule that says the compliance statement is not a right.

V. The Interference

Section 301(d) extends the licensing requirement to operation “within any State when… interference is caused by such use or operation with the transmission of such energy, communications, or signals.” The microwave oven’s interference with radio communications is among the best-documented interference phenomena in consumer electronics.

Both the oven and the 2.4 GHz Wi-Fi band operate at approximately the same frequency. In testing with a spectrum analyzer, an operating microwave oven reduced Wi-Fi network throughput from just over 100 megabits per second to approximately 3 megabits per second, stomping across the entire 2.4 GHz band.¹⁰ The country’s telecommunications regulator in the United Kingdom, Ofcom, has issued formal consumer advice on the subject: “Did you know that microwave ovens can also reduce Wi-Fi signals? So don’t use the microwave when you’re making video calls, watching HD videos or doing something important online.”¹¹ A foreign regulator now counsels its citizens to schedule their radio communications around the transmission schedule of their kitchen appliances.

The Commission’s own rules anticipate this exact interference and decline to require its elimination. At 47 CFR § 18.111(b), the operator of ISM equipment that causes harmful interference to any authorized radio service must “promptly take whatever steps may be necessary to eliminate the interference.”⁹ But paragraph (c) then provides that paragraph (b) “shall not apply in the case of interference to an authorized radio station or a radiocommunication device operating in an ISM frequency band.”⁹ Wi-Fi operates in the ISM band. The regulation thus considers the precise interference at issue, the degradation of 2.4 GHz radio communications by 2,450 MHz energy transmission, and affirmatively excuses it. The duty to eliminate harmful interference does not apply to the interference everyone can measure.

The jurisdictional consequence is straightforward. Section 301(d) reaches intrastate operation “when interference is caused.” The interference is caused, documented, measured in megabits per second, and acknowledged by regulators on two continents. Every kitchen in America is therefore within the subsection’s reach every time the magnetron energizes.

VI. The Scale

The Energy Information Administration’s Residential Energy Consumption Survey found that 113.6 million American households have a microwave oven, while 4.6 million do not.¹² That is 96 percent of American households: 113.6 million unlicensed radiofrequency transmitters, each capable of approximately one thousand watts, installed at taxpayer expense in the nation’s kitchens.

Consider the dinner hour. If one in ten of these transmitters operates simultaneously, a conservative assumption for the period between 6:00 and 7:00 PM, then 11.36 million magnetrons are energized at once, generating approximately 11.4 gigawatts of radiofrequency energy. The Commission’s pirate radio enforcement program, by contrast, pursues individual unlicensed broadcasters operating at a few dozen watts from apartments in Queens. The enforcement resources devoted to the 11.4-gigawatt unlicensed transmission event that occurs in American kitchens every evening: zero field agents, zero notices of apparent liability, zero equipment seizures.

The Food and Drug Administration, for its part, requires that every oven have a minimum of two operative safety interlocks, and that the power density in the proximity of the external oven surface not exceed 1 milliwatt per square centimeter prior to purchase and 5 milliwatts per square centimeter thereafter.¹³¹⁴ Two interlocks stand between the operator and the full transmitted power. The federal government requires two interlocks on every unlicensed one-thousand-watt radio transmitter in America, limits the leakage to 5 milliwatts per square centimeter, and considers the matter closed.

VII. The Identification Failure

Licensed broadcast stations are subject to station identification requirements at 47 CFR § 73.1201. Identification announcements must be made at the beginning and ending of each time of operation and hourly, as close to the hour as feasible, at a natural break in program offerings. The official identification must consist of the station’s call letters immediately followed by the community of license.¹⁵

No microwave oven has ever transmitted a station identification. No oven has call letters. No oven has a community of license. The end-of-cycle beep, a series of tones indicating that the transmission has concluded, does not satisfy § 73.1201: it contains no call letters, names no community, and is not issued hourly. It is, at best, a sign-off without a sign-on, broadcast by a station that has never identified itself, on a frequency for which it holds no license, to an audience of one reheated burrito.

VIII. The Penalty Exposure

Congress has addressed unlicensed radio transmission with increasing seriousness. The Preventing Illegal Radio Abuse Through Enforcement Act, enacted January 24, 2020, authorizes the Commission to impose forfeitures of up to $100,000 per day for pirate radio broadcasting, up to a maximum of $2 million.¹⁶¹⁷ Adjusted for inflation, the figures are now $115,802 per day and $2,316,034 maximum.¹⁸

The arithmetic of exposure is as follows. There are 113.6 million unlicensed transmitters. At the statutory rate of $100,000 per day per violation, a single day of nationwide operation represents a theoretical forfeiture exposure of $11.36 trillion. That figure is approximately 40 percent of the gross domestic product of the United States, incurred between breakfast and dinner, by appliances.

The Commission has proposed the maximum penalty against individual pirate broadcasters operating low-power FM transmitters from residential properties.¹⁸ It has proposed nothing against the 113.6 million transmitters operating at up to 1,200 watts on 2,450 megahertz. The disparity is not explained in any Commission order. The ovens continue to transmit.

IX. The Disclosed Defense

Four objections will be raised, and they are addressed here rather than suppressed.

First, that Part 18 itself constitutes the authorization § 301 contemplates, and that ISM equipment operates lawfully without individual station licenses. The objection fails on the Commission’s own text. Section 301 requires “a license in that behalf granted under the provisions of this chapter.” Section 18.111(a) provides that equipment authorization confers no vested or recognizable right to the frequency. The Commission has defined, by rule, what its authorization is not. It is not a license. What the ovens hold is something the Commission has explicitly distinguished from a license, offered as satisfaction of a statute that explicitly demands a license.

Second, that § 301 was written for radio communication, and that ovens transmit energy rather than communications. The objection fails on the statute’s grammar. The prohibition reaches “the transmission of energy or communications or signals by radio,” stated in the disjunctive, with energy listed first. Congress wrote “energy” before it wrote “communications,” and it did so twice: once in the purpose clause’s reference to “all the channels of radio transmission,” and once in the prohibition itself. An oven transmits energy by radio. The verbs are satisfied. The burrito is irrelevant to the analysis.

Third, that the PIRATE Act’s enhanced penalties apply to the AM and FM broadcast bands, not to the ISM heating bands. The objection is accurate and immaterial. The drafters addressed the pirates they could see. The principle, that unlicensed transmission of radiofrequency energy draws forfeiture, is band-agnostic, and nothing in the statute’s findings limits the concept of piracy to operators with microphones. The drafters simply failed to imagine a pirate station with a turntable.

Fourth, that ovens are shielded, that leakage is incidental and within FDA limits, and that there is no intent to transmit beyond the cavity. The objection fails three ways. Section 301 contains no intent element; the prohibition attaches to use or operation, not to purpose. Section 18.305(a) permits unlimited radiated energy in the band, so the rules themselves contemplate the radiation without treating it as an accident. And § 301(d) extends jurisdiction to intrastate operation “when interference is caused”: the interference is documented at 100 megabits per second collapsing to 3, confirmed by a foreign regulator’s consumer guidance, and excused in advance by § 18.111(c). A transmitter whose interference is anticipated, measured, and pre-excused by regulation is not an accident. It is a program.

X. Conclusion

The evidence does not require interpretation. It requires a license application.

Section 301 of the Communications Act provides that no person shall operate any apparatus for the transmission of energy by radio without a license. Every domestic microwave oven is such an apparatus. It generates approximately one thousand watts of radiofrequency energy at 2,450 megahertz, at the center of a band where the Commission permits unlimited radiated energy. The equipment authorization it carries is, by the Commission’s own rule, not a license and not a right to the frequency. The interference its operation causes to radio communications is documented, measured, and sufficient on its own to trigger federal jurisdiction under § 301(d).

There are 113.6 million of these transmitters. They operate without station licenses, without call signs, without communities of license, and without hourly identification. They announce the end of each transmission with a beep that satisfies no regulation. The theoretical forfeiture exposure for a single day of nationwide operation is $11.36 trillion.

The Commission’s rules require the oven to tell the user, in the instruction manual or on the packaging, about “the interference potential of the device.”⁵ The manual discloses the interference potential. It does not disclose that the interference potential is the jurisdictional hook of a 1934 licensing statute, or that the device’s authorization is by rule not a license, or that the beep is not a legal identification.

It discloses the interference potential. The potential has been realized. It is realized every evening, between 6:00 and 7:00 PM, at approximately 11.4 gigawatts.

Ergo.