On Fri, 29 Apr 2005 05:45:19 -0700, Frank Gilliland
wrote:

On Fri, 29 Apr 2005 06:49:08 -0400, Dave Hall
wrote in :

snip
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.

"Probably" unconstitutional? How so?


For many of the same reasons Bush's Patriot Act is unconstitutional:
you don't have the right to a fair trial or to contest all evidence;
the accused is not afforded the right to be "presumed innocent until
proven guilty" because guilt is presumed (or, in the words of the FCC,
"liability" is "apparent"); and guilt is determined by the accuser
which is a conflict of interest.

It's not much different than getting a speeding ticket. You are
presumed guilty by virtue of the citation, and have to go to court to
prove innocence, if you are so inclined. Nothing unusual about that.


Not only that, but the procedure was
concocted without any legal history or precedent -- they just came up
with the idea and made it law.

The idea that every law has to have "legal history" is ludicrous. At
some point in history a precedent has to be set based on little more
than circumstances. Laws which deal with technology which did not
exist 200+ years ago, cannot have much history. There has to be a
definite beginning.


According the the Supreme Court, that's
not "due process of law".

Not in the sense of a criminal court. But then again, neither would
the handling of summary offenses such as littering or speeding.


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.

If, as you allege, the NAL system is constitutionally flawed, there
would be far more people challenging FCC NAL's and winning. This goes
beyond simple citizen's 2-way radio issues. Big guns like Howard Stern
have been fined by the FCC, and his respective companies forced to
pay. They can afford some heavy legal muscle. If the NAL system was
unconstitutional, you would think that these fines would have been
overturned in a legal battle on that basis. Then, of course, the FCC
would have to refine their methods if they wish to remain effective in
enforcement.


"Heavy muscle" costs money, and big businesses make their decisions
based on monetary values, not moral principles.

That may be true, but at some point, it becomes cheaper to fight the
charge than to continually pay fines as was the case with Stern.

Recent examples are
Proctor & Gamble's decision to pull their commercials from "Queer Eye"
and "Will & Grace", and Bill Gates pulling his support of gay rights
legislation, all because of boycotts by some culturally intolerant
right-wing religious homophobes.

What you call a "right wing homophobe", others might call correcting
blind acceptance of abhorrent behavior. You open that door, and it
becomes only a matter of subjective degree as increasingly more
decadent behavior is attempted to be justified by those who partake in
it.

The god-squads do not represent the
majority by any means, but they can put a dent in the profits of these
corps who, BTW, will eventually reverse their decisions after the gay
rights groups begin their own boycotts.

Most businesses don't care what they think. The most vocal of these
activists do not represent significant buying power. And, as you
pointed out so accurately, it's all about money.


Money, not constitutionality,
is the motivating factor behind the decisions of big business.

True in most cases.


Back to the topic.... The FCC fines have increased over the years but
have never exceeded the cost of mounting a full-scale legal challenge;

I'm not so sure of that. But if it is true, that only serves to
illustrate just how lawyers have corralled the legal field beyond the
means of anyone who wishes to challenge perceived unfair practices.


so the companies just take the hit, pay the fine and kiss FCC butt.
I'm sure that someday the FCC will slap someone with an NAL based on a
faulty financial assessment of a company and get challenged, but I'm
also sure they have a contingency plan in case that ever happens.

Are you implying that the FCC only contemplates fining those who they
feel cannot mount a successful legal challenge? I'm not sure I buy
into this level of conspiratorial thought.


After all, they have had plenty of time to plan strategies to defend
against any possible legal confrontation. But until that day comes,
the FCC will continue operating as a rouge government outside the
boundries of the Constitution.

The Constitution does not specifically define many agencies and
policies in the federal government, such as the NSA, black ops, Area
51etc.. The Constitution could not possibly foresee the need for many
of them, including the FCC. The creation of the FCC is perfectly
legal, as it falls under the discretion of the congress, even if you
may disagree with their tactics.

Dave
"Sandbagger"
http://home.ptd.net/~n3cvj