On Fri, 29 Apr 2005 11:39:04 -0400, Dave Hall
wrote in :

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.


Not in my state. You aren't found guilty unless you admit to the
infraction, ignore the ticket, or lose the contest in court. I've
already hashed this out with Leland a while back.


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.


Actually, the common and statutory laws of England were adopted for
the US, and the laws that were contrary to the Constitution were
thrown out. You can't just make up laws on a whim -- they have to be
founded on pre-existing law, be it statute, common or case law.


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.


Call them 'summary offenses' or 'civil infractions', they are still
violations of law and subject to due process under the Constitution.
You still have the right to appear in court, to contest the evidence,
to appeal the ruling, etc, etc. And unless you can find a state that
convicts upon being cited, you are still innocent until proven guilty.


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.


It appears that they found it cheaper to eliminate Howard Stern than
risk further fines. Indirect censorship at it's finest (and no, I
don't like Howard 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.


Oh man..... I could stand on this soap box for hours, but I won't.
I'll just give you one glaring example of what's -really- abhorrent: A
TV censorship system where war and murder are suitable for all viewers
but Janet Jackson's nipples are strictly off limits. And if you need
more examples just ask, cause I have a long list of things "abhorrent"
ranging from the Bush administration to dandelions.

But back to the topic, it's not up to you or any right-wing fanatic
group to dictate how others should live their lives. If you are a
Christian, great, but don't push your religion on me. You have your
values, I have mine, and others have theirs. And if you can't accept
the concept of "E Pluribus Unum" then leave.


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.


Hogwash. I just gave you two recent examples of major corps bowing to
pressure from these fanatics.


The most vocal of these
activists do not represent significant buying power. And, as you
pointed out so accurately, it's all about money.


They don't represent a -significant- part of the economy but they
-can- put a dent in the profits, which is what I already said. Corps
make their decisions based on numbers, and if they think that dropping
ads from a couple shows is going to be less expensive than a dent in
profits from a small boycott then you can bet your bottom dollar that
the ads will be yanked.


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.


That's a very good point. Justice is for the rich because lawyers are
greedy *******s.


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?


Cannot or will not.


I'm not sure I buy
into this level of conspiratorial thought.


Well, conspiracies do exist. And if my conclusions are true, the FCC
wouldn't call it a conspiracy. In fact, I wouldn't either. I -would-
call it a grossly unethical and unfair method of law enforcement. The
FCC would probably call it "cost effective management" or some similar
euphamism.


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.


I never claimed the FCC was established illegally. My contention is
that they are using procedures that are unconstitutional.






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