On Tue, 16 Sep 2003 01:03:16 GMT, Keith wrote:

Of course, if the amateur op doesn't have his license with him, the
officer has reasonable cause to believe that the pre-emption does
not cover him even though it still does, and if the rig has been
modified so that it is capable of TRANSMITTING on the police
frequency, the pre-emption is not valid even if the operator is a
licensed amateur (per the FCC Public Notice on this matter many
years ago).

Please cite case law that supports your position that modified ham radios
do not have the same exemption as all ham radios?

And on Tue, 16 Sep 2003 22:09:22 -0700 (PDT), Phil Kane wrote:

That was the deal that the League worked out with the FCC - if the
radio did not transmit "out of band" then the preemption covered.
The intent was to exclude VHF/UHF transceivers which have been
"opened up".

I'll dig out the Public Notice if I can find it. It was many years
ago.


FCC PR Docket No. 91-36 MO&O Released September 3, 1993.

V. CONCLUSION [Emphasis added]

13. We hold that state and local laws that preclude the
possession in vehicles or elsewhere of amateur radio service
transceivers by amateur operators merely on the basis that the
transceivers are capable of the RECEPTION of public safety,
special emergency, or other radio service frequencies, the
RECEPTION of which is not prohibited by federal law, are
inconsistent with the federal objectives of facilitating and
promoting the amateur radio service and, more fundamentally,
with the federal interest in amateur operators' being able to
transmit and receive on authorized amateur service frequencies.
We therefore hold that such state and local laws are preempted
by federal law.

Footnotes

33. The rules, however, do prohibit amateur service
transmissions outside of the allocated amateur service bands.
47 C.F.R. Sec. 97.307(b); Public Notice, Extended Coverage
Transceivers in the Amateur Radio Service, mimeo no. 4114 (July
21, 1987)(noting that "[i]t is a violation of the Commission's
regulations to . . . transmit on a frequency allocated to a
licensed service without the appropriate Commission-issued
station license.").

The above proceedings are very clear that it covers only "out of
band" reception and does not cover equipment that has "out of band"
transmit capability.

Not being a real lawyer, although you try to play one, you may not
accept the fact that in FCC practice, situations which are not
specifically mentioned for preemption are not preempted.
Adminsitrative Practice 101.

There has not been any challenge to this ruling, therefore it stands
as effective law until overturned. Administrative Practice 102.

--
73 de K2ASP - Phil Kane
ARRL Volunteer Counsel