On Thu, 28 Apr 2005 05:19:51 -0700, Frank Gilliland
wrote:

On Thu, 28 Apr 2005 07:24:02 -0400, Dave Hall
wrote in :


the commission usually sends a warning to an alleged
violator prior to issuing an NAL. If the warning is ignored then the
subsequent NAL is prosecuted as a violation that was done both
willingly and -intentionally-.

Ok, you win that one. That is usually the case.


The facts
are that there ARE illegal intruders on 10 meters. The how's and why's
are irrelevant.


Intent is -very- relevant because some of those dopes don't know that
they are operating illegally.

(and there are those who think we should open up the whole spectrum to
dopes like that. A perfect example of why there are licenses and
rules)

Ignorance of the law is no excuse. At least it didn't used to be. With
all the liberals running around looking to paint every lawbreaker as a
victim, I guess ignorance might be a legitimate excuse now.


I see it a little differently: When we the people are subject to
mountains of laws that can be fully understood only by an army of
lawyers, ignorance can be a very reasonable excuse in many cases. It's
simply impractical (and nearly impossible) for the average citizen to
know and understand all the laws that apply to every circumstance.

I agree, the law was never intended to be so complicated that only a
legal expert can comprehend all the nuances of it. I tend to believe
that lawyers do this deliberately to justify and continue their
existence.

Even worse is when a seemingly cut and dry law get's "what-if'd" to
death in a courtroom battle of hypotheticals which may never occur.
This is why you are required to sign dozens of forms for what should
be a simple transaction in many cases.

And many of those that -do- know they
are illegal are not aware of the severity of the consequences if they
get caught.

Since you saw fit to bring violent crimes into the picture in the
beginning, I'll refer back to them when I make the point that someone
claiming that he didn't know the gun was loaded, would hardly be
absolved of the crime of killing someone based on that excuse alone.


It has happened.

Sure it has happened. When someone desperately wants to escape for
responsibility, they (and by proxy, their lawyer) will do and try
anything to get them off. The absurdity of such defense tactics, just
makes me shake my head.


But even when it didn't, the lack of intent has
certainly been a factor in determining the punishment.

Well sure, killing someone completely by accident is a far different
thing than deliberately murdering someone.

But what I was talking about, but probably didn't use the best example
in doing so, is that you can't kill someone in cold blood and then
claim that you didn't know it was wrong or illegal, and expect much
leniency.

The same thing applies to radio operation to some degree. The claim
that you didn't know you were running on an illegal frequency may not
hold much water, since the FCC requires that you read and understand
the rules before operating, and by the act of your operation, they
assume that you know the rules. It's sort of the same language they
use for software licenses. "By installing this product, you agree to
the terms of the license" etc.

I hate to bring this up, since I can't "prove it", but I once read an
account in a CB magazine (It may have been S9's Washington Outlook),
back in the day, which covered FCC busts of illegal CB'ers. This one
bust involved a group of SSB'ers who had formed a club on a freeband
channel. One of the guys who was busted made a claim that he didn't
know he was operating illegally, since the radio he was using had been
purchased by another person, who had (unbeknownst to him allegedly)
swapped a standard channel crystal (it was a 23 channel rig) for one
which would produce an illegal channel. The operator further claimed
that he assumed he was operating on channel 23 (or whatever it
actually was, I don't remember), as that is what his channel selector
showed. The FCC didn't buy his story, based on other evidence that
indicated that he was all too aware of what was going on.


Hence the FCC's pre-NAL warning letter to notify them that
such operation is illegal and subject to heavy penalties, giving them
the opportunity to rectify their ignorance before they get popped for
several thousand dollars.

Do you get a warning when you get pulled over for speeding? Sometimes
you do, sometimes not. Do you get a warning when you rob a bank? Rape
someone? Assault? Do you get a chance to claim ignorance and promise
that you won't do it again?


There is a defense known as 'justifiable homocide'. I understand that
it's rarely used, but it has been a successful defense in some cases.

Yes, there is a "justifiable homicide" defense. Usually this works
best in abusive domestic situations, where severe emotional and
physical abuse leads to violence as the only solution. By definition,
self defense is also considered a justifiable homicide.

But justifiable homicide is not the same thing as claiming ignorance
of the existence of homicide law.


It's true that the FCC usually sends out warning notices first, but
they don't have to. That's called discretion (the better part of
valor).


Actually, they do need to send out those notices in almost all cases.
The reason behind it is the FCC's pseudo-constitutional system of law
enforcement and the need to establish "willful and malicious" conduct
of the violator. This bypasses the criminal court system, forwards the
forfeiture order directly to the DOJ for collection, and pre-empts
evasion of payment if the violator files for bankruptcy -- an NAL is a
debt that cannot be discharged under any chapter of bankruptcy law. If
the debt -was- dischargeable then the FCC would be forced to file an
adversarial complaint and subsequently defend their law enforcement
practices in Federal court, which is something they have no intention
of doing because they would lose.


This is interesting. The FCC has in the past taken certain violators
to criminal court. In the vast majority of cases though, you are
correct. There would seem to be some threshold which determines their
course of action.

What I am especially curious about is your assertion that if the FCC
took a clear violator to federal court that they would lose. Why do
you feel that way? I would presume that once the FCC decided to act
upon a violator that they would have enough evidence to prove their
case.

Dave
"Sandbagger"