On Thu, 28 Apr 2005 10:56:45 -0400, Dave Hall
wrote in :

On Thu, 28 Apr 2005 05:19:51 -0700, Frank Gilliland
wrote:

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


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.

I agree, the law was never intended to be so complicated that only a
legal expert can comprehend all the nuances of it. I tend to believe
that lawyers do this deliberately to justify and continue their
existence.


Maybe a few think that way, but I think it's mostly to protect against
the ambulance-chasing opportunists that force court interpretation of
every little flaw, as you stated with the following:


Even worse is when a seemingly cut and dry law get's "what-if'd" to
death in a courtroom battle of hypotheticals which may never occur.
This is why you are required to sign dozens of forms for what should
be a simple transaction in many cases.

snip
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.


This is interesting. The FCC has in the past taken certain violators
to criminal court. In the vast majority of cases though, you are
correct. There would seem to be some threshold which determines their
course of action.

What I am especially curious about is your assertion that if the FCC
took a clear violator to federal court that they would lose. Why do
you feel that way? I would presume that once the FCC decided to act
upon a violator that they would have enough evidence to prove their
case.


It's not a matter of taking someone to court on criminal charges, it's
about the NAL system of enforcement. The evidence may be overwhelming
and uncontested, but the procedure is probably unconstitutional as the
Supreme Court has suggested in at least one opinion. So the FCC avoids
any constitutional challenge to the NAL, even to the point of settling
before it goes to court. You suggested that there is some threshold
they use to decide which actions to take, and I would suggest that you
are right -- a critera based on the willingness and resourcefulness of
the accused to mount a legal challenge against the FCC's NAL system.







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