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- X-News: zeus.unomaha.edu rec.radio.amateur.policy:169
- From: acmnews@zeus.unomaha.edu (Paul W. Schleck KD3FU)
- Subject:Actual Text of FCC PR Docket 91-36 (was Re: FCC and Scanners...)
- Date: 9 Apr 91 20:10:00 CST
- Message-ID:<12395.28021f99@zeus.unomaha.edu>
-
- To help quell rumors and speculation, the following is the actual text
- of PR Docket 91-36. Read the document for yourself and form your own
- opinions. In my opinion (and based on the docket) it would appear that
- the FCC is trying to take our side and need some more technical information
- to bolster its decision.
-
- Much thanks to Dave Sumner, K1ZZ, of the American Radio Relay League
- (2155052@mcimail.com) for promptly replying to my E-mail request and
- sending a copy of the docket.
-
- 73, Paul W. Schleck, KD3FU
-
- ACMNEWS@zeus.unomaha.edu
-
- *************************************************************************
-
-
-
- Before the
- Federal Communications Commission
- Washington, DC 20554
-
- PR Docket No. 91-36
-
- In the Matter of
-
- Inquiry into the Need to Preempt
- State and Local Laws Concerning
- Amateur Operator Use of
- Transceivers Capable of Reception
- Beyond the Amateur Service
- Frequency Allocations
-
- NOTICE OF INQUIRY
-
- Adopted: February 13, 1991; Released: February 28, 1991
-
- By the Commission:
-
- I. INTRODUCTION
-
- 1. On November 14, 1989, the American Radio Relay League, Incorporated
- (ARRL) filed a Request for Issuance of Declaratory Ruling (1) requesting
- that the Commission preempt certain state statutes and local ordinances
- affecting transceivers (2) used by Amateur Radio Service licensees. Some
- of these laws are so broad as to prohibit mere ownership of such
- transceivers if they are capable of reception of communications on certain
- frequencies other than amateur service frequencies. On March 15, 1990, we
- released a public notice (3) inviting comment on ARRL's request. Although
- comments were received supporting ARRL's position, no comments were
- received addressing certain technical issues that are before us in this
- matter. Furthermore, the majority of comments addressed a broader
- preemption than was discussed in our public notice. We initiate this
- present inquiry to assist us further in considering ARRL's request.
-
- II. BACKGROUND
-
- A. State and Local Laws
-
- 2. The ARRL request discussed eleven state statutes and one local
- ordinance. These laws are commonly known as "scanner laws" the violation
- of which is typically a criminal misdemeanor, with equipment confiscation a
- possibility (4). The New Jersey statute is representative of these laws:
-
- Any person who installs or has in any automobile, a short-wave radio
- receiver operative on frequencies assigned by the Federal Communications
- Commission for fire, police, municipal, or other governmental uses, is
- guilty of a misdemeanor, unless a permit therefor has first been
- obtained from the chief of the county police, or from the chief of the
- police of the municipality, wherein such person resides.
-
- This section does not apply to any fire, police, or other governmental
- official of the State, or of any county or municipality thereof (5).
-
- This statute regulates the mere acts of installing or posessing in a
- vehicle certain receivers, and it includes a permit requirement for those
- who are not governmental officials. Also, although the New Jersey statute
- prohibits the capability to receive "fire, police, municipal or other
- governmental" channels, our review of the subject laws cited by the ARRL
- indicates that most of the statutes at issue are more narrowly drawn to
- prohibit the capability to receive police channels.
-
- 3. Most of these laws are directed primarily toward frequency reception
- capability by equipment located in vehicles, but at least one law reaches
- possession of this equipment merely outside the home (6). Some laws,
- however, specifically exempt amateur operators who posess equipment in
- motor vehicles (7). These state and local laws appear to be aimed at
- promoting the health, safety, and general welfare of the citizenry (8).
-
- B. The ARRL Declaratory Ruling Request
-
- 4. ARRL makes two arguments in support of preemption. First, it states
- that the receiver sections of the majority of commercially available
- amateur station transceivers can be tuned slightly past the edges of the
- amateur service bands to facilitate adequate reception up to the end of the
- amateur service bands. ARRL seeks a preemption ruling that would permit
- amateur operators to install in vehicles transceivers that are capable of
- this "incidental" reception (9). Although ARRL's formal request is couched
- in terms of this first, technical point, the request focuses almost
- entirely on a second, broader issue of whether state and local authorities
- should be permitted, via the scanner laws, to prohibit the capability of
- radio reception by amateur operators on public safety and special emergency
- frequencies that are well outside the amateur service bands.
-
- 5. In regard to the broader issue, ARRL argues that amateur operators
- have special needs for broadscale "out-of-band" reception, and that the
- marketplace has long recognized these needs by offering accommodating
- transceivers. According to ARRL (1), many commercially manufactured
- amateur service HF transceivers and the majority of such VHF and UHF
- transceivers have non-amateur service frequency reception capability well
- beyond the "incidental" -- they can receive across a broad spectrum of
- frequencies, including the police and other public safety and special
- emergency frequencies here at issue. This additional capability, argues
- ARRL, permits amateur operators to take part in a variety of safety
- activities, some in conjunction with the National Weather Service, that are
- legitimately available to amateur operators. Such activities benefit the
- public, especially in times of crisis, and some require the mobile use of
- the amateur stations (11). ARRL states that the "vast majority" of amateur
- operators take part in these mobile activities, and that the widespread
- enforcement of laws such as New Jersey's would make illegal the possession
- of "essentially all" modern amateur mobile equipment (12). (As of January
- 31, 1991, the Commission's licensing database indicates that there are
- 502,133 amateur station licensees in the United States and its territories
- and posessions.) ARRL states that, as a result of scanner laws, "several
- dozen instances of radio seizure and criminal arrest [have been] suffered
- by licensed amateurs in recent months." (13)
-
- C. Comments
-
- 6. In response to our public notice on this matter, we received 45
- comments, including on from ARRL, and no reply comments. All support
- ARRL's broader request and almost all appear to be from amateur operators.
- Twenty-four comments are from individuals who are aware of one or more of
- the subject laws and express support for ARRL's position in very general
- terms. Of the twenty-one remaining comments, four are from individuals who
- had first-hand experience with such laws, where law enforcement warnings or
- confiscation have resulted from transceiver possession. Five are from
- individuals in law enforcement, either currently or formerly. Six are from
- the following associations and organizations: Association of North
- American Radio Clubs, Associated Public-Safety Communications Officers,
- Spectrum Resources, Uniden America Corporation, Personal Radio Steering
- Group (which requests that we extend this proceeding to cover General
- Mobile Radio Service licensees), and Utilities Telecommunications Council
- (which requests that we extend this proceeding to cover other mobile
- licensees that wish to receive fire and other public safety service
- transmissions). Although this inquiry is primarily focused on the Amateur
- Radio Service, we additionally take this opportunity to request comment on
- whether the scanner laws are affecting other licensed radio services.
-
- 7. ARRL describes an incident in which a licensed amateur operator who
- resided in New York was driving his vehicle through New Jersey when the New
- Jersey police, acting under authority of the New Jersey statute, stopped him,
- arrested him, and confiscated his VHF amateur service transceiver. ARRL notes
- that the New York licensee, as a non-resident of New Jersey, would not be
- eligible to obtain the operator's permit required by the New Jersey statute
- for receiver operation within New Jersey (14). Another commenter, a licensed
- amateur operator, states that although he is a New Jersey resident, his
- request for a permit under the New Jersey statute has been denied by the local
- issuing authority on the grounds that the authority issues the permits only to
- "emergency personnel." (15) In three other comments, amateur operators state
- that while traveling in vehicles in Illinois, Ohio, New Jersey, and Texas,
- they have been stopped by state or local police and threatened with the
- possibility of confiscation of their mobile amateur service transceivers (16).
-
- 8. A few commenters state that they have found vital their volunteer safety
- work the use of certain out-of-band channels used in governmentally sponsored
- activities such as the Civil Air Patrol's search and rescue undertakings.
- Another commenter explains how use of his out-of-band receiver allowed him to
- listen to the National Weather Service on VHF maritime channels for critical
- information during a flood. These commenters emphasize that there is a public
- service value in having their transceivers be capable of receiving these
- channels, which are not amateur, public safety, or special emergency services
- frequencies. (17)
-
- 9. As noted above, Associated Public-Safety Communications Officers, Inc.
- (APCO) filed a comment in support of the ARRL Request. APCO is this nation's
- oldest and largest public safety communications organization representing the
- public safety radio community. APCO states:
-
- Every radio amateur is not the law-abiding citizen we would prefer them
- to be. However, it is patently unfair to penalize the entire community
- for the actions of the few who utilized their equipment to circumvent the
- law. Amateur radio operators have, historically, been vital assets to
- public safety community. They have assisted government and the public
- in virtually every disaster that has occurred throughout the world.
-
- There are other methods of protecting communications available to public
- safety, such as encryption, which is easy to procure and much less
- invasive of the citizen's right (or privilege) to listen to what is
- being transmitted over the radio. APCO believes that, in this modern
- age, it is the responsibility of an agency to protect its own
- confidential communications through the use of technology, not by
- arresting innocent citizens (18).
-
- III. DISCUSSION
-
- 10. We believe additional information would assist us to make a decision in
- this matter (19). For example, it would be helpful to have more information
- on the current (and future) marketplace availability of mobile equipment
- meeting the restriction of the subject laws, and on the technical and
- financial feasibility of modifying existing equipment to meet the laws. We
- especially encourage the manufacturing community, which is best suited to
- comment on the current state of amateur radio technology, to provide this
- technical information. We also desire comment from the states and
- municipalities that have enacted the subject laws. Specifically, we solicit
- comment on the following questions:
-
- (1) Is there VHF or UHF mobile (or portable) amateur equipment now
- being manufactured that complies with the state and local laws in
- question? If so, give the purchase costs and the make and model
- numbers.
-
- (2) What percentage of existing VHF or UHF mobile amateur equipment
- has a reception capability (a) only on amateur service bands, (b) on
- amateur bands plus a capability just beyond the amateur bands (within
- 25 kHz of the band edge), and (c) on the amateur bands plus a
- capability on (at least) any of the public safety or special emergency
- services channels? What are the above percentages when calculated
- only in the context of equipment that is currently being manufactured
- (as opposed to equipment that no longer is manufactured or is built
- by an amateur)? What are the purchase costs for such equipment?
-
- (3) What percentage of amateur operators purchase and use manufactured
- mobile equipment?
-
- (4) What is necessary technically for manufacturers to produce
- equipment that complies with the laws, and what are the associated
- costs?
-
- (5) What is required technically to modify amateur equipment that is
- capable of receiving on police radio service channels or other public
- safety or special emergency services channels to eliminate such
- reception capability, and what is the cost associated with such a
- modification? Does the intercategory sharing permitted in the private
- land mobile services (20) and the diversity of frequency restrictions
- throughout the country affect the technical requirements or costs of
- such modifications?
-
- (6) What specific instances have occurred where the state and local
- laws in question have adversely affected amateur radio operation?
-
- (7) Is there a public interest in having amateur equipment available
- that can receive non-amateur frequencies, e.g. an interest in providing
- a pool of equipment that facilitates emergency operations in states
- where local authorities expressly desire the assistance of amateur
- licensees?
-
- (8) Given that the amateur radio equipment market is essentially
- world-wide, what would be the effect, if any, on the availability and
- price of amateur equipment if United States requirements were made
- more restrictive than those of the rest of the world? Do any other
- countries have restrictions on amateur radio transceiver receipt of
- public safety transmissions?
-
- (9) What effect do the scanner laws have on the interstate sale of
- amateur service equipment and the interstate transport of equipment
- by amateur licensees?
-
- IV. PROCEDURAL MATTERS
-
- 11. Accordingly, we adopt this Notice of Inquiry under the authority
- contained in Sections 4(i), 303(r), and 403 of the Communications Act of 1934,
- as ammended, 47 USC 154(i), 303(r), and 403. Pursuant to applicable
- procedures set forth in Sections 1.415, 1.419, and 1.430 of the Commission's
- Rules, 47 CFR 1.415, 1.417, & 1.430. Interested parties may file comments on
- or before June 7, 1991, and reply comments on or before July 8, 1991.
- Extensions of these time periods are not contemplated. We will consider all
- relevant and timely and timely comments before taking final action in this
- proceeding. In reaching its decision, the Commission may consider information
- and ideas not contained in the comments, provided that such information or a
- writing indicating the nature and source of such information is noted in any
- subsequent actions. As noted above in a footnote, comments filed pursuant to
- our previous public notice are deemed to be filed in response to this Notice
- of Inquiry as well, and therefore need not be refiled. We do not, however,
- discourage additional filings from the entities who filed previously.
-
- 12. To file formally in this proceeding, participants must file an original
- and five copies of all comments, reply comments, and supporting comments. If
- participants want each Commissioner to receive a personal copy of their
- comments, an original plus nine copies must be filed. Persons who wish to
- participate informally may do so by submitting one copy. Comments and reply
- comments should be sent to the Office of the Secretary, Federal Communications
- Commission, 1919 M Street NW, Washington, DC 20554. Comments and reply
- comments will be available for public inspection during regular business hours
- in the Dockets Reference Room (room 239) of the Federal Communications
- Commission, 1919 M Street NW, Washington, DC 20554.
-
- FEDERAL COMMUNICATIONS COMMISSION
-
-
-
- Donna R. Searcy
- Secretary
-
-
- FOOTNOTES
-
- (1) The American Radio League, Inc. Request for Declaratory Ruling
- Concerning the Posession of Radio Receivers Capable of Reception of Police or
- other Public Safety Communications (Nov. 13, 1989) (hereinafter "ARRL
- Request").
-
- (2) Radio equipment capable of both transmission and reception. We are
- concerned herein, however, only with reception capability. Transmission by
- amateur operators on unauthorized frequencies is prohibited.
-
- (3) Public Notice, 4 FCC Rcd 1981 (1990), 55 Fed. Reg. 10805 (Mar. 23,
- 1990). Comments were due by May 16, 1990, and reply comments by May 31, 1990.
-
- (4) Three of the laws, however, are "aiding and abetting"-type statutes,
- which would prohibit the use of any radio receiver in connection with criminal
- activity. See ARRL Request, supra note 1, at 10 n.7. Such statutes do not
- penalize a radio owner for mere possession of a radio receiver, but instead
- specify that, in the context of criminal activity, the unlawful act consists
- of reception and divulgence (or use) of the communcation. Such statutes are
- not addressed by this inquiry.
-
- (5) N.J. Stat. Ann. 2A 127--4 (West 1985) (cited in party only). See
- generally note 8 infra (discussing case upholding New Jersey statute, which
- dates from 1933).
-
- (6) See Ky. Rev. Stat. Ann. 432.570 (Michie/bobbs-Merrill 1985). Under
- Kentucky's statute, certain users are exempted, such as radio and television
- stations, sellers of the "scanner" radios, disaster and emergency personnel,
- and those using the weather radio service of the National Oceanic and
- Atmospheric Administration. Some such users need to obtain local governmental
- permits, others do not.
-
- (7) See e.g., Minn. Stat. Ann. 299C.37 (West Supp. 1990): N.Y. Veh. & Traf.
- Law 397 (McKinney 1986).
-
- (8) Such was noted by a New Jersey court in upholding, on other than
- preemptive grounds, the constitutionality of New Jersey's law.
-
- It seems reasonable to assume that there may have been a determination
- by the Legislature that if persons in automobiles could without
- restriction listen to fire, police, and other governmental communications
- their high degree of mobility coupled with their possible desire to
- proceed to locations referred to in such communications, for reasons
- of curiosity or otherwise, might well result in interference with
- essential government activities. Likewise, the Legislature may have
- determined that if persons engaged in illegal activities were able to
- receive such information in their automobiles, they would become aware
- of their detection and their escape would be facilitated.
-
- State v. Smith, 130 N.J. Super. 442, 446-47, 327 A.2d 462,464-65 (1974).
-
- (9) ARRL Request, supra note 1, at 1, 3 n.2, 5 n.3, "Most commercial
- amateur radio VHF and UHF transceivers ... are incidentally capable of
- reception (but not transmission) on frequencies additional to those allocated
- to the Amateur Radio Service. These frequencies are adjacent to amateur
- allocations. This is true even though the equipment is primarily designed for
- amateur bands, and results from the intentional effort to insure proper
- operation of the transceiver throughout the entire amateur band in question."
- Id. at 3 n.2.
-
- (10) Id. at 12.
-
- (11) See generally House Comm. on the Judiciary, Electronic Communications
- Privacy Act of 1986, H.R> Rep. No. 647, 99th Cong., 2d Sess. 42.
-
- (12) ARRL Request, supra note 1, at 2, 12.
-
- (13) Id. at 11.
-
- (14) Comments of the American Radio Relay League, Incorporated at 2-3 (May
- 16, 1990).
-
- (15) Comment of Emory L. Brown, Jr. (Mar. 23, 1990).
-
- (16) Comment of L.W. Bradford (May 1, 1990); Comment of Rich Casey (May 9,
- 1990); Comment of Todd L. Sherman (April 21, 1990).
-
- (17) It should be noted that in the 30-50 MHz, 150-174 MHz, and 450-512 MHz
- bands the public safety and special emergency services channels are intermixed
- with frequencies allocated to non-public-safety services. Thus, eliminating
- the capability to receive the public safety channels would have to be done on
- a case-by-case, frequency-by-frequency basis. In these segments of the
- spectrum, there does not exist a contiguous range of requencies that
- constitute a "public safety band," with upper and lower frequency limits, that
- could more easily be excluded.
-
- (18) Comments of APCO at 2-3 (May 16, 1990).
-
- (19) Comments filed pursuant to our previous public notice are deemed to be
- filed in response to this Notice of Inquiry as well, and therefore need not be
- refiled. We do not, however, discourage additional filings from the entities
- who filed previously.
-
- (20) See 47 CFR 90.176. For example, a Police Radio Service licensee may
- be authorized to operate on frequencies allotted to the Highway Maintenance
- Radio Service, the Forestry-Conservation Radio Service, or any other public
- safety land mobile service.
-
- **** END OF DOCUMENT ****
-