"Frank Gilliland" wrote in message
news
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...ID=60034850378
3+1+0+0&WAISaction=retrieve
Linkus mortis.
I posted a message to Landshark. The two lines above should be all on one
line with no space between the "?" and the "W". Try it again.
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.
There is a public review process were people can send their comments to the
FCC. If the FCC decides to ignore those comments then about the only
recourse is court, or get the US Congress to pass a law, i.e. direct the
FCC, to do its bidding. Not a great process, but that's what we're stuck
with for now.
Regardless, evidence is
fine as long as it's used IN A COURT OF LAW.
So what exactly is a "Court of Law"? Think about it. Then if you manage to
get the link above working that should give pause for thought after reading
the material.
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."
Partisan politics as usual. Its a wonder that anything useful gets done in
Congress. Makes me sick when the Democrats are fighting with the
Republicans, thus stalling a bill that really would be a big benefit to the
people, all because one party or the other wants to screw the other party
over a previous bill, or who got elected to office.
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.....
Here come the conspiracy theories and the Black Helicoppers. 8-))
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?
No. I talked to a Ham buddy who just so happens to be a cop. He said most
cops don't bother with truckers because they don't know enough about
trucking law specifically so they don't like to mess with them. The other
thing that I have to give the truckers is it sure doesn't make much sense to
have trucks going 55 MPH, posted truck speed limit, when 4 wheelers are
doing 70 MPH, posted speed limit, and having the 4 wheelers constantly
weaving in and out of the right lane passing the slow moving trucks. I get
sick of doing it when I'm on the road and have to drive a few hundred miles
to get to a customer's site. It would make more sense for all the traffic to
be doing roughly the same speed. I also think the cops don't bust the
truckers to much for speeding because if they did then it would be a real
pain with the 4 wheelers having to pass them. With the truckers moving at
about the same speed as the rest of the traffic, without getting too far
above the posted truck speed limit, the need for passing and possible
accidents is reduced.
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,
Yeah it is. The cop as an official law enforcement officer in the writing of
the ticket has determined that you have violated the motor vehicle law, i.e.
guilty. The point of going to court is in the hope that the judge would
DISAGREE with the cop and dismiss the ticket. If that wasn't true than
anybody could just ignore paying the fine. But we all know if you did that
then a bench warrant is issued and you are now guilty of breaking another
law.
You also don't need to go to court to pay the fine either. If you take the
time to read the back of the ticket where you sign the thing, one of the
choices, is a section where you DENY GUILT, and request a court hearing. Now
if you weren't already "guilty" then why do you need to deny it? Think about
that one.
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.
Read the very top of the motion and you'll see it was filed in the wrong
court, District Court. In fact the quote above was written by the court as
one of the several points why the motioned was denied. They wanted to make
the point it was not filed with the right court. I would think anybody with
a legal background reading the motion would have been able to figure that
out.
The NAL
was issued to the station, not Jones, and hence her action opposing
the NAL was dismissed.
That was only one of several reasons. See my comment above.
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.
You have to read the material at the link I posted you had trouble getting
to work. There is a lot of stuff to read there.
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.
Not really. There is a section mentioned in the motion about a section in
the CFR's, Code of Federal Registry, that explains in detail the process. As
typical of any legal motion only the parts that directly supports the exact
situation at hand are ever quoted. Assuming there isn't any more to it is
naive.
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?
Read section 13. There you'll see what is meant by a "review by the
commission", i.e. in front of an Administrative Law Judge.
http://www.w6trw.com/Articles/Gerritsen.htm
Read the sectioned titled "Burton Trial".
http://www.arnewsline.org/newsline_archives/Cbbs060.txt
You also claimed that nobody watches or over sees the FCC. I told you that
the Congress does do it. Read the following. Read the whole thing.
http://www.parentstv.org/PTC/publica...paper/main.asp
Now what is interesting here is at the top. When you request a "hearing"
with the commission you have your day in court as I've stated before in
front of an Administrative Law Judge.
http://hraunfoss.fcc.gov/edocs_publi...C-03D-01A1.pdf
So as I've stated previously Fank that the US Congress, or a Congressional
committee, does in fact over sees the FCC contrary to your assertions. And
also as I've said you get you day in court with a NAL in font of an
Administrative Law Judge that you have asserted doesn't happen.
--
Leland C. Scott
KC8LDO
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