On Sat, 27 Nov 2004 20:20:15 -0500, "Leland C. Scott"
wrote in :


"Frank Gilliland" wrote in message
.. .

Wrong. You can't challenge the violation in court like you can a
traffic ticket. FCC fines are enforced by the Treasury Dept as
uncollected debts, -not- as violations of FCC rules.

I've read where some who have gotten NAL's have had their day in court in
front of an administrative law judge. CFR 47 and the rules under it are
considered administrative law and can thus be heard in court. Some have
even
won their cases. Check it out for yourself.


I will. Got a link?

Here is how the whole process works in all of its gory detail.

http://frwebgate5.access.gpo.gov/cgi...i on=retrieve


Linkus mortis.


What I meant was that the FCC has the power to write their own rules
under the CFR to enforce the USC as they see fit.
snip
For an example to support my opinion, read 18 USC subsection 2511.
This is the law that prohibits interception of communication. The law
includes exceptions for reasons such as law enforcement. But even law
enforcement agencies are required to jump through hoops in order to
intercept communications and use it as evidence. Yet the FCC has
written themselves a blank check: The same law permits the FCC to
intercept communications without any warrant or showing of probable
cause.

You forgot about the "in pain view" argument the courts use when no search
warrant is in hand to admit evidence. Besides they don't always have to have
audio recordings. Signal strength, direction finding antennas used to find
the location of the transmitter, and frequency measurements do real good
without violation the so called privacy of the communication.


The point was that they make their own rules. Regardless, evidence is
fine as long as it's used IN A COURT OF LAW.


As for the idea that congress controls the FCC, I should remind you
that many big bill packages (such as the spending bill currently
before this lame-duck congress) are filled with subtle laws (as well
as pork-barrel spending) that get passed without ever being read
because the bill is so large.

Business as usual. That's why the president needs the line item veto power.


I agree, and that's something Clinton pushed to get passed. But a
bigger problem is the lack of representation in the house. Check this
out:

http://www.thirty-thousand.org/


One such law that almost snuck through
in this bill was one that would have put a cap on lawsuits against
drug companies even if the company knew beforehand that their product
was bad. There are plenty of bad laws like this that slip through
congress without even a blink. And you can bet that the FCC slips
their own bills through, too.

So while congress may -technically- control the FCC, the reality is
that they don't.

Except when something get under their skin. It won't be the first time
Congress has pasted a law specifically to address an issue with some Federal
Agency.


I see it as kind of a back-washing policy..... "You ignore my bill and
I'll ignore your's."


snip
Cops don't ticket truckers for speeding? Boy, that's news to me! I've
only known one trucker that never got a speeding ticket, but he had
only been driving for a month. I'm sure he has a few by now.

I've seen some that can use a few more.


True story. And along those lines, the worst offenders I see are the
buss drivers who almost -never- get a ticket. Maybe city employees are
exempt or something.....


snip
Maybe those 4-wheelers should get themselves CB radios......

When you see the 18 wheelers blowing by the cop on the side of the road with
his radar going, and doesn't stop them makes you wonder.


I don't see that too often. Come to think of it, I've never seen
anybody blow a radar speed trap and not get caught. Maybe the cop you
saw was asleep?


snip
Perhaps. But again, every law enforcement agency -except- the FCC
requires a warrant to obtain a wiretap. And even if the audio is
admissible as evidence, it's up to a jury -- NOT the FCC -- to
determine the weight of that evidence.

See the link I posted about how the whole legal process works with the FCC.


.............


snip
You still missed the issue: You get an NAL because you have been found
guilty without a trial.

You get a speeding ticket with out a trial too.


A traffic citation is not a determination of guilt, you can contest
the citation in a court of law, and you can appeal the finding of the
court through the judicial system.


You can appeal the ruling but only to the FCC,
so you are basically appealing to the prosecution. If you refuse to
pay the fine then your case is forwarded to the Treasury Department
for collection; i.e, the only case you can bring before a judge is an
issue of law regarding the DEBT -- NOT the violation that -resulted-
in the debt.

Gee. I'm getting tired of saying this. See the link I posted above about the
legal process.


................


snip
The FCC's use of the NAL precludes standing in any court.

No. It is reviewable by the Court of Appeals.

http://www.pfaw.org/pfaw/dfiles/file_158.pdf

Read the last few lines of the last paragraph on page 3.

I'll quote it here.
__________________________________
Apart from this and other limited

exceptions not relevant here, jurisdiction over final FCC orders

is exclusively vested in the Courts of Appeals. Section 402(a)

of Title 47, United States Code, provides that "[a]ny proceeding

4

to enjoin, set aside, annul, or suspend any order of the

Commission . . . shall be brought as provided by and in the

manner prescribed in chapter 158 of Title 28." 47 U.S.C. §

402(a). That chapter, in turn, provides that the Courts of

Appeals have "the exclusive jurisdiction to enjoin, set aside,

suspend (in whole or in part), or to determine the validity of .

. . all final order of the Federal Communications Commission made

reviewable by section 402(a) of title 47." 28 U.S.C. § 2342(1).

_________________________________________________ ____________


This particular motion for the plaintiff failed because it was apparently
filed in District Court.


No, it failed because Nora Jones had no standing in the case. The NAL
was issued to the station, not Jones, and hence her action opposing
the NAL was dismissed. Now the -station- could file a civil suit
contesting the order of the FCC, and that's perfectly consistent with
what I have already explained (you can address the debt, not the
violation). But even if this case was a suit filed by the station it
would have been dismissed, or at least suspended, because the
forfeiture order was not yet final.

Notice that the document also cites 47 USC 504(a), which states that
forfeitures can only be recovered [not contested] in a civil suit [as
I noted before], and that any such action will be a trial de novo.
That last part has me at a loss since there was no "trial" in the
first place. But that's what it says. In any case, the procedure is
expensive, win or lose.


The only way
you can challenge their laws is indirectly; i.e, habeus corpus, civil
suit, temporary injunction, congressional intervention, etc, etc. The
problem is that the people who would benefit the most from standing do
not have the means to mount an indirect challenge. And -that's- how
the FCC can prevent you from having your 'day in court'.

Read it from the horse's month in the above quote.


The case you cited supported my statement nicely. Thank you.


snip
And sometimes not. Read through the FCC enforcement logs and you'll see that
several Hams have gone to court to keep the FCC from pulling their Ham
ticket. Now just how much economic sense does that make? None. It was done
as a mater of principle.


Where are those enforcement logs? Not the whole list, just the ones
where hams were able to contest their NAL's in court?


There is nothing that prevents
them from pursuing the issue in court if the money is not a concern.


But money -is- a concern, as you have already stated.

Yes, but still some go ahead anyway.


Perhaps. Perhaps not. If anyone has done so in the past they either
weren't successful or they dropped the issue.


snip
The Supreme Court picks and chooses which cases it wants to hear based on
how widely it would affect the law of the land.


That's naive.

No. Its very well documented. The Supreme Court gets cases filed by the
truck load. They pick and choose which ones they wish to hear if they feel
it will make a substantial difference in the existing laws. Row vs. Wade,
the abortion case, is one case in point. Otherwise they decline to hear the
case.

Every other agency of the government operates under the
table to some extent. What makes you think the FCC is any different?

What do they do "under the table"? Wear knee pads?


I explained my response better in the other reply.


snip
The Office of the Inspector General is not the Commission Chairman.
And any commissioner can influence the commission in the way you
stated. Anyway, when you get tired of reading -between- the lines try
reading the lines as explicitly written regarding the job of Chairman:

I did. What you forget is that only specifies the minimum requirements for
the job. No were does it say that is the limit of his duties.


His job description doesn't exclude riding a horse through Arlington
Cemetary on Veteran's Day while wearing a tutu and singing "God Save
the Queen". So does that mean he should?


snip
Well, I've been in the middle of at least three situations that should
have been ideal examples of what you describe: Mt. StHelens; hurricane
Gloria; and Spokane's ice storm of '96. But in all of those emergency
situations, ham radio activity consisted mostly of small-talk and QRM.
And in all three cases the bulk of non-PSP emergency communication was
done by CB radio. After listening to the ham bands for 30 years I can
say with great confidence that ham radio sucks when it comes to those
types of situations. Time and time again CB radio has proven itself to
be the communications backbone when landlines fail.

Tell that to the Police and Fire officials during 9/11.


I wasn't there. Were you?


You can also ask
Keith on this group what he thinks. He is a Ham and has done plenty of
emergency comms in his job.


Feel free to ask him yourself. His experiences are different than mine
so he may have a different perception. But in the three disasters I
witnessed and experienced firsthand, CB radio ruled and ham radio was
lame.


snip
If there is one sure thing in life its change. Assuming things are going
to
stay the same just isn't reasonable. So if it's bad its going to get
better.


Or worse. And I made no assumption about things not changing, although
sometimes change can be very slow. Since I have a poor track record as
a prognosticator, I no longer make assumptions about the future except
that it will come.

Were is that dang time machine they keep sying is "just around the corner"?
8-))


It's still in the future, of course. But they use it to come back and
do things in our time. Like during the JFK assassination. Ever wonder
what happened to his brain? It's in the future! Who planted the "magic
bullet" on the gurney? A time traveller! Jeez, Lee, isn't all this
obvious? (yes, I'm joking!)






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