QRZ! Ham Radio 3/QRZ Ham Radio Callsign Database - Volume 3.iso/buffalo/fcc9136.txt

Internet Message Format | 1993-10-05 | 22KB

From: [e-mail] (Paul W. Schleck KD3FU)
Subject: Text of FCC PR Docket 91-36 (FCC Scanner regs)
Date: 9 Apr 91 20:10:00 CST

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
([e-mail]) for promptly replying to my E-mail request and
sending a copy of the docket.

73, Paul W. Schleck, KD3FU

[e-mail]

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                                 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.

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