On Thu, 28 Apr 2005 07:24:02 -0400, Dave Hall
wrote in :

On Thu, 28 Apr 2005 00:37:35 -0700, Frank Gilliland
wrote:


That most freebanders do not enter the hammie bands, despite Oxendine's
and your sock protests against cbers.

The law does not distinguish between ignorance and intent.


It most certainly does. It's the difference between premeditated
murder and negligent manslaughter.

I was not talking about those crimes. I was referring to illegal
intrusion into radio spectrum allocated for a specific purpose.


Although homocide has nothing to do
with the FCC,

Then why bring it up?


Because it has some parallels to the topic.


the commission usually sends a warning to an alleged
violator prior to issuing an NAL. If the warning is ignored then the
subsequent NAL is prosecuted as a violation that was done both
willingly and -intentionally-.

Ok, you win that one. That is usually the case.


The facts
are that there ARE illegal intruders on 10 meters. The how's and why's
are irrelevant.


Intent is -very- relevant because some of those dopes don't know that
they are operating illegally.

(and there are those who think we should open up the whole spectrum to
dopes like that. A perfect example of why there are licenses and
rules)

Ignorance of the law is no excuse. At least it didn't used to be. With
all the liberals running around looking to paint every lawbreaker as a
victim, I guess ignorance might be a legitimate excuse now.


I see it a little differently: When we the people are subject to
mountains of laws that can be fully understood only by an army of
lawyers, ignorance can be a very reasonable excuse in many cases. It's
simply impractical (and nearly impossible) for the average citizen to
know and understand all the laws that apply to every circumstance.


And many of those that -do- know they
are illegal are not aware of the severity of the consequences if they
get caught.

Since you saw fit to bring violent crimes into the picture in the
beginning, I'll refer back to them when I make the point that someone
claiming that he didn't know the gun was loaded, would hardly be
absolved of the crime of killing someone based on that excuse alone.


It has happened. But even when it didn't, the lack of intent has
certainly been a factor in determining the punishment.


Hence the FCC's pre-NAL warning letter to notify them that
such operation is illegal and subject to heavy penalties, giving them
the opportunity to rectify their ignorance before they get popped for
several thousand dollars.

Do you get a warning when you get pulled over for speeding? Sometimes
you do, sometimes not. Do you get a warning when you rob a bank? Rape
someone? Assault? Do you get a chance to claim ignorance and promise
that you won't do it again?


There is a defense known as 'justifiable homocide'. I understand that
it's rarely used, but it has been a successful defense in some cases.


It's true that the FCC usually sends out warning notices first, but
they don't have to. That's called discretion (the better part of
valor).


Actually, they do need to send out those notices in almost all cases.
The reason behind it is the FCC's pseudo-constitutional system of law
enforcement and the need to establish "willful and malicious" conduct
of the violator. This bypasses the criminal court system, forwards the
forfeiture order directly to the DOJ for collection, and pre-empts
evasion of payment if the violator files for bankruptcy -- an NAL is a
debt that cannot be discharged under any chapter of bankruptcy law. If
the debt -was- dischargeable then the FCC would be forced to file an
adversarial complaint and subsequently defend their law enforcement
practices in Federal court, which is something they have no intention
of doing because they would lose.






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