On Fri, 26 Nov 2004 16:04:38 -0500, "Leland C. Scott"
wrote in :


"Frank Gilliland" wrote in message
.. .
Name one federal agency that doesn't claim to suffer from a lack of
funding.

I'm thinking........ Maybe the IRS? 8-))


Touche'.


I have used that argument myself but I have since found out that it
doesn't wash: Many CBers -don't- know the rules. And while any person
can refuse a station inspection, most CBers (and many hams) are not
aware that such a refusal can be used as 'evidence' against him, and
is therefore a violation of the 5th amendment.

I would like to see some legal opinions in that area.


So would I since it's only my opinion. But what -isn't- my opinion is
the 4th Amendment, which is very specific about searches and seizures.


You do rasie an
interesting point.

Wrong. You can't challenge the violation in court like you can a
traffic ticket. FCC fines are enforced by the Treasury Dept as
uncollected debts, -not- as violations of FCC rules.

I've read where some who have gotten NAL's have had their day in court in
front of an administrative law judge. CFR 47 and the rules under it are
considered administrative law and can thus be heard in court. Some have even
won their cases. Check it out for yourself.


I will. Got a link?


What I meant was that the FCC has the power to write their own rules
under the CFR to enforce the USC as they see fit. Since the power of
the FCC is not balanced by a watchdog agency,

They are. It's called the Congress of The United States. If you don't keep
up with Ham related things such as zoning-convents-home owner associations,
where they restrict erection of antenna towers etc. and the PRB-1 issue, you
won't know. The FCC has made a ruling granting a partial over ruling of such
restrictions for TV antennas. Also it states that "reasonable
accommodations" have to be made for Ham antennas. Its not a blacket
override. Many Hams have requested that the FCC issue an order more
specific. I bring this up as a point because the FCC said they will not
issue such an order unless directed by Congress by way of law making. So as
you can see they can't make up any rules they like. They are bound by the
Congress, and any treaties they sign, like at the last world administrate
radio conference. I will agree that they do have a wide latitude in what
they can do, but it is non the less has bounds.


For an example to support my opinion, read 18 USC subsection 2511.
This is the law that prohibits interception of communication. The law
includes exceptions for reasons such as law enforcement. But even law
enforcement agencies are required to jump through hoops in order to
intercept communications and use it as evidence. Yet the FCC has
written themselves a blank check: The same law permits the FCC to
intercept communications without any warrant or showing of probable
cause.

As for the idea that congress controls the FCC, I should remind you
that many big bill packages (such as the spending bill currently
before this lame-duck congress) are filled with subtle laws (as well
as pork-barrel spending) that get passed without ever being read
because the bill is so large. One such law that almost snuck through
in this bill was one that would have put a cap on lawsuits against
drug companies even if the company knew beforehand that their product
was bad. There are plenty of bad laws like this that slip through
congress without even a blink. And you can bet that the FCC slips
their own bills through, too.

So while congress may -technically- control the FCC, the reality is
that they don't. The commissioners are controlled by the lobbyists
hired by corporate fat-cats, and most of congress is too busy with
their partisan politics to worry about little things like bad laws.
That may be a cynical perception, but nonetheless accurate.


Wrong. Notice what happens when a cop is on the road

Tell that to the truckers I see routinely doing 60+ MPH in crealy marked 55
MPH zones, cops or not.


Cops don't ticket truckers for speeding? Boy, that's news to me! I've
only known one trucker that never got a speeding ticket, but he had
only been driving for a month. I'm sure he has a few by now.


Police presence DOES make a difference.

But only if they know for sure they will actually do something. I was in
Georgia driving south of Atlanta, on my way to Macon for a work assignment,
driving on I75 a week ago. I got routinely passed by truckers doing well
over 70 MPH, which is the posted speed limit. I also saw plenty of 4
wheelers getting pulled over for speeding. I can't recall seeing any of the
hordes of speeding 18 wheelers getting pulled over. And I saw plenty of cops
everywere I went.


Maybe those 4-wheelers should get themselves CB radios......


snip
I doubt it. When they have the violator on audio tape

They screw criminals all the time with wire taps etc. Seems to me if it was
so unconstitutional some sharp attorney would have put that baby to bed a
long time ago, and permanently too. As far as anything transmitted over the
air there really is no reasonable expectation of privacy without
extraordinary measures being taken, such as using encryption. It then
becomes like the "in plain sight" rules the street cops use when finding
edvidence.


Perhaps. But again, every law enforcement agency -except- the FCC
requires a warrant to obtain a wiretap. And even if the audio is
admissible as evidence, it's up to a jury -- NOT the FCC -- to
determine the weight of that evidence.


That's a constitutional violation in and of itself.
snip
The issue is not about a person's right to use a radio transmitter,
but about the protections of the accused that are -supposed- to be
guaranteed by the constitution. Like, 'innocent until proven guilty in
a court of law'. Last time I checked the FCC is not a part of the
judicial branch. They can accuse but they CANNOT determine guilt.
That's why their citations are notifications of APPARENT liability.

Like I said above, if you don't like it take it to the judge. Same as a
speeding ticket.


You still missed the issue: You get an NAL because you have been found
guilty without a trial. You can appeal the ruling but only to the FCC,
so you are basically appealing to the prosecution. If you refuse to
pay the fine then your case is forwarded to the Treasury Department
for collection; i.e, the only case you can bring before a judge is an
issue of law regarding the DEBT -- NOT the violation that -resulted-
in the debt.


If someone uses a radio transmitter in violation of the law then by
all means they should be held accountable. But the -means- by which
that person is brought to justice by the FCC is unconstitutional and
they know it.

Anybody who disagrees with an FCC NAL can have their day in court and there
is nothing the FCC can do to stop it.


The FCC's use of the NAL precludes standing in any court. The only way
you can challenge their laws is indirectly; i.e, habeus corpus, civil
suit, temporary injunction, congressional intervention, etc, etc. The
problem is that the people who would benefit the most from standing do
not have the means to mount an indirect challenge. And -that's- how
the FCC can prevent you from having your 'day in court'.


EVERY person has the constitutional right to challenge ANY law. The
problem is that the FCC has been very careful about preventing any
such challenges.

Ah no.


Quite right -- you can't challenge the law unless you have standing,
as I said before.


For the violator it sure is. Unless you're a big corporation a private
person doesn't stand much of a chance when the FCC has the wealth of the
Federal Treasury behind it to spend on legal proceddings. I can asure you
their legal budget is bigger that your's or mine.


Exactly! And that's why any fine against a large company by the FCC
will never be large enough to justify any such challenge -- they will
simply write it off as an expense, just like Twisty explained.

That is an economic decision by the company.


It's a tactic used by the FCC based on the expected economic decision
by the company. So far it has worked well.


There is nothing that prevents
them from pursuing the issue in court if the money is not a concern.


But money -is- a concern, as you have already stated.


snip
The Supreme Court picks and chooses which cases it wants to hear based on
how widely it would affect the law of the land.


That's naive. Every other agency of the government operates under the
table to some extent. What makes you think the FCC is any different?


snip
See this link

http://a257.g.akamaitech.net/7/257/2.../47cfr0.11.pdf

Look under section 0.13. You have to read between the lines, but I think
you'll get the drift. The chairmen can exert influence over what the
commission does in an indirect manner. And that was all I implied by my
prior statement.


The Office of the Inspector General is not the Commission Chairman.
And any commissioner can influence the commission in the way you
stated. Anyway, when you get tired of reading -between- the lines try
reading the lines as explicitly written regarding the job of Chairman:

http://a257.g.akamaitech.net/7/257/2...r/47cfr0.3.htm
http://a257.g.akamaitech.net/7/257/2...47cfr0.211.htm


snip
If you read through the relevent sections of Part 0 (linked above) you
will see that the chairman is nothing more than a representative and a
facilitator. He is -not- the controlling force of the FCC. If he was
then it wouldn't be called a "commission".

So why are the lobbyists always trying to get the chairman's era? If he
doesn't matter why are they wasting their time with him? As you should know
what is said on paper, how it should work, may not always match how it
really gets done.


The lobbyists go after the commissioners just as much as the chairman,
maybe even more so. You just don't hear about it on the news.


snip
I've read reports where the interference was so bad that in one or more
foreign countries have pulled the plug completely on BPL. In reported case
here in the USA about reported interference the BPL provider was unable to
resolve the problems even after months of tweaking the system. There is a
new technology on the horizon that may just obsolete BPL anyway, the 802.16
for a wireless MAN (Metropolitan Area Network).


Even government corruption has it's limits.


snip
You missed -my- point: ham radio is none of my business.

In reality it is to a degree. It isn't called a "service" for nothing you
know. One of the primary reasons for the existence of Ham Radio is to
provide emergency communications. This is something that affects Hams and
non Hams alike. Just ask Keith here on the group. That's one main reason why
he got his Ham ticket, and I'm sure he has put it to good use the last
several months.


Well, I've been in the middle of at least three situations that should
have been ideal examples of what you describe: Mt. StHelens; hurricane
Gloria; and Spokane's ice storm of '96. But in all of those emergency
situations, ham radio activity consisted mostly of small-talk and QRM.
And in all three cases the bulk of non-PSP emergency communication was
done by CB radio. After listening to the ham bands for 30 years I can
say with great confidence that ham radio sucks when it comes to those
types of situations. Time and time again CB radio has proven itself to
be the communications backbone when landlines fail.


I -am- a CBer,

Gee, I didn't know that. ;-))


Some people in this newsgroup are -not- CBers, which is why I affirmed
myself as one.


and IMO you can stick a much
bigger thorn in the FCC's ass if you pester your congressional rep.

It happens.


Evidently it doesn't happen enough.

Yup.


It
still won't get anything accomplished, but at least you're forcing the
FCC to answer to someone with some authority.

Why do you think some of what is happening is happening? Maybe not enough
to
suit some people, but some progress is being made.


All I see happening is the ARRL taking a step forward after being
pushed back three steps. That's not progress, it's damage control.

If there is one sure thing in life its change. Assuming things are going to
stay the same just isn't reasonable. So if it's bad its going to get better.


Or worse. And I made no assumption about things not changing, although
sometimes change can be very slow. Since I have a poor track record as
a prognosticator, I no longer make assumptions about the future except
that it will come.





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