"Frank Gilliland" wrote in message
...

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?

Here is how the whole process works in all of its gory detail.

http://frwebgate5.access.gpo.gov/cgi...i on=retrieve



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.

You forgot about the "in pain view" argument the courts use when no search
warrant is in hand to admit evidence. Besides they don't always have to have
audio recordings. Signal strength, direction finding antennas used to find
the location of the transmitter, and frequency measurements do real good
without violation the so called privacy of the communication.


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.

Business as usual. That's why the president needs the line item veto power.

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.

Except when something get under their skin. It won't be the first time
Congress has pasted a law specifically to address an issue with some Federal
Agency.

The commissioners are controlled by the lobbyists
hired by corporate fat-cats, and most of congress
their partisan politics to worry about little things like bad laws.
That may be a cynical perception, but nonetheless accurate.

I agree there.



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.

I've seen some that can use a few more.



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......

When you see the 18 wheelers blowing by the cop on the side of the road with
his radar going, and doesn't stop them makes you wonder.



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.

See the link I posted about how the whole legal process works with the FCC.



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 get a speeding ticket with out a trial too.

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.

Gee. I'm getting tired of saying this. See the link I posted above about the
legal process.



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.

No. It is reviewable by the Court of Appeals.

http://www.pfaw.org/pfaw/dfiles/file_158.pdf

Read the last few lines of the last paragraph on page 3.

I'll quote it here.
__________________________________
Apart from this and other limited

exceptions not relevant here, jurisdiction over final FCC orders

is exclusively vested in the Courts of Appeals. Section 402(a)

of Title 47, United States Code, provides that "[a]ny proceeding

4

to enjoin, set aside, annul, or suspend any order of the

Commission . . . shall be brought as provided by and in the

manner prescribed in chapter 158 of Title 28." 47 U.S.C. §

402(a). That chapter, in turn, provides that the Courts of

Appeals have "the exclusive jurisdiction to enjoin, set aside,

suspend (in whole or in part), or to determine the validity of .

.. . all final order of the Federal Communications Commission made

reviewable by section 402(a) of title 47." 28 U.S.C. § 2342(1).

__________________________________________________ ___________


This particular motion for the plaintiff failed because it was apparently
filed in District 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'.

Read it from the horse's month in the above quote.



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.

And sometimes not. Read through the FCC enforcement logs and you'll see that
several Hams have gone to court to keep the FCC from pulling their Ham
ticket. Now just how much economic sense does that make? None. It was done
as a mater of principle.



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.

Yes, but still some go ahead anyway.



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.

No. Its very well documented. The Supreme Court gets cases filed by the
truck load. They pick and choose which ones they wish to hear if they feel
it will make a substantial difference in the existing laws. Row vs. Wade,
the abortion case, is one case in point. Otherwise they decline to hear the
case.

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

What do they do "under the table"? Wear knee pads?



snip
See this link


http://a257.g.akamaitech.net/7/257/2....access.gpo.go
v/cfr_2002/octqtr/pdf/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:

I did. What you forget is that only specifies the minimum requirements for
the job. No were does it say that is the limit of his duties.



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.

So does tolerating the digital trash generated by BPL. Enough people
complained about it that is why it got canned.



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.

Tell that to the Police and Fire officials during 9/11. You can also ask
Keith on this group what he thinks. He is a Ham and has done plenty of
emergency comms in his job.


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.

Suit yourself.


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.

Were is that dang time machine they keep sying is "just around the corner"?
8-))


--
Leland C. Scott
KC8LDO

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