New York Court Kicks Out charges against ham!
 

* Court kicks New York ham's "police radio" case: A New York court has
dismissed a misdemeanor charge against ARRL member Richard C. "Dick"
Lalone, KC5GAX, for violating §397 of that state's Vehicle and Traffic
Law. That section prohibits individuals other than law officers from
equipping their vehicles with radios "capable of receiving signals on the
frequencies allocated for police use" without first securing a permit. The
section, which also prohibits knowingly interfering with police
transmissions, contains an explicit exemption for "any person who holds a
valid amateur radio operator's license . . . and who operates a duly
licensed portable mobile transmitter and in connection therewith a
receiver or receiving set on frequencies exclusively allocated . . . to
duly licensed radio amateurs." In a nearly 1300-word decision, Judge John
J. Hallet said it was clear the legislature never intended the provisions
of §397 from applying to licensed Amateur Radio operators, and he
dismissed the charge August 5. Susan Terry, KF4SUE, a former New York
assistant attorney general, represented Lalone. ARRL President Jim Haynie,
W5JBP, ARRL General Counsel Chris Imlay, W3KD, and ARRL Regulatory
Information Specialist John Hennessee, N1KB, provided advice or assistance
to Lalone.


I like THIS one. AW, poor cop, no donut. LOL!!!


Jerry

On Sun, 14 Sep 2003 23:28:56 -0400, Jerry wrote:

I like THIS one. AW, poor cop, no donut. LOL!!!

That's what happens when you put radio-based enforcement in the
hands of unclued-in officers. It should have never gotten past the
initial field stop.

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).

--
73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

"Phil Kane" wrote in message
et...
On Sun, 14 Sep 2003 23:28:56 -0400, Jerry wrote:

I like THIS one. AW, poor cop, no donut. LOL!!!

That's what happens when you put radio-based enforcement in the
hands of unclued-in officers. It should have never gotten past the
initial field stop.

It doesn't say much about the inteligence level of the prosecutor's
office either.

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,

But surly such an oversight would have been "cleared up" before
any actual trial.

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).

I didn't see that as the case with the federal preemption as I read it.
What happens now that most radios will need to be modified to
operate on the 5MHz band?

Cheers,
Bill K2UNK

"Bill Sohl" wrote in
link.net:


"Phil Kane" wrote in message
et...
On Sun, 14 Sep 2003 23:28:56 -0400, Jerry wrote:

I like THIS one. AW, poor cop, no donut. LOL!!!

That's what happens when you put radio-based enforcement in the
hands of unclued-in officers. It should have never gotten past the
initial field stop.

It doesn't say much about the inteligence level of the prosecutor's
office either.

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,

But surly such an oversight would have been "cleared up" before
any actual trial.

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).

I didn't see that as the case with the federal preemption as I read it.
What happens now that most radios will need to be modified to
operate on the 5MHz band?

Cheers,
Bill K2UNK





Good point Bill. I use my FT-817 in my car. If I modified it to transmit
on 5 MHz it would be able to transmit on police frequencies too.

On Mon, 15 Sep 2003, Phil Kane wrote:
On Sun, 14 Sep 2003 23:28:56 -0400, Jerry wrote:
I like THIS one. AW, poor cop, no donut. LOL!!!

That's what happens when you put radio-based enforcement in the
hands of unclued-in officers. It should have never gotten past the
initial field stop.

I wouldn't be surprised if that's not the last event in this story. I smell a
42 USC 1983 issue coming over the horizon (especially for "failure to
train" - cf. Monell vs. Social Services of NYC).... He should sue.

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).

I disagree. Identity can be established with the driver's license, and a radio
license lookup is no more complicated than radioing in a wants/warrant check on
either a person or a registration check on a vehicle. With the data available,
"knowledge is in hand."

Phil Kane wrote:

On Sun, 14 Sep 2003 23:28:56 -0400, Jerry wrote:



I like THIS one. AW, poor cop, no donut. LOL!!!



That's what happens when you put radio-based enforcement in the
hands of unclued-in officers. It should have never gotten past the
initial field stop.



I wonder how many thousands of special exceptions to the various laws cops
deal with, the cops need to know about. The more obscure stuff is not
likely to get remembered by your average cop. Still a pain in the butt
for that ham...

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?

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.

If I add 5 MHz capability to a radio do I now lose all protection of
Federal laws?

Does your HF transceivertransmit on public safety VHF/UHF
frequencies? Does your VHF/UHF amateur transceiver transmit on 5
MHz ??

What about if I build a kit or use a land mobile radio in the ham bands?

If you have the installed capability of transmitting on a non-amateur
frequency and do not have a license for such operation, it is not
covered under the preemption and it's your job to talk yourself out of
the jam. You're on your own.....

--
73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

Just to muddy the water, if I modify my 706 so I can use it on 5 MHz, it
would transmit on public safety VHF/UHF frequencies.

73,
David K5DEL


Does your HF transceivertransmit on public safety VHF/UHF
frequencies? Does your VHF/UHF amateur transceiver transmit on 5
MHz ??

"Phil Kane" wrote in message
et...
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?

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.

I read that when it was initially out and have no recollection
of the "out-of-band" transmit aspect. The issue always was
focused on amteur rigs that could also recieve (i.e. listen to)
police broadcasts from an automobile.

If I add 5 MHz capability to a radio do I now lose all protection of
Federal laws?

Does your HF transceivertransmit on public safety VHF/UHF
frequencies? Does your VHF/UHF amateur transceiver transmit on 5
MHz ??

Today there are several HF/VHF rigs that can do so. IC-706
has 6m and 2m, several other HF rigs now cover HF plus 6, 2 and 440.
In all the cases of harrased hams (harassed by police) in states with
laws forbidding listening to police transmissions, the issue was
always listening to..not transmitting on, police frequencies.
Here in NJ we finally changed the old state law around 1994.

What about if I build a kit or use a land mobile radio in the ham bands?

If you have the installed capability of transmitting on a non-amateur
frequency and do not have a license for such operation, it is not
covered under the preemption and it's your job to talk yourself out of
the jam. You're on your own.....

I truly don't recall that to be the case at all...for kits and or
commercial ham transcievers modified to allow non-ham
frequencies (e.g. MARS) or modified to do so because
there is a NEW ham set of frequencies (e.g. 5MHz)
..
Cheers,
Bill K2UNK

"Phil Kane" wrote in message . net...
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?

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.

If I add 5 MHz capability to a radio do I now lose all protection of
Federal laws?

Does your HF transceivertransmit on public safety VHF/UHF
frequencies? Does your VHF/UHF amateur transceiver transmit on 5
MHz ??

Yup, my FT-847 can recieve & transmit 160M thru 2m except 60M plus 440
all modes out of the box and it'll fit under the dash. Ditto a number
of other current-tech xcvrs like the very popular IC-706, etc. If I
mod it to operate on 60M which is clearly a legal maneuver I'll also
be able to operate all over the VHF and lower UHF spectrum which is
clearly illegal.

What about if I build a kit or use a land mobile radio in the ham bands?

If you have the installed capability of transmitting on a non-amateur
frequency and do not have a license for such operation, it is not
covered under the preemption and it's your job to talk yourself out of
the jam. You're on your own.....

That old Public Notice is the problem, it is not the solution.

w3rv

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

On 17 Sep 2003 22:17:01 -0700, Brian Kelly wrote:

If you have the installed capability of transmitting on a non-amateur
frequency and do not have a license for such operation, it is not
covered under the preemption and it's your job to talk yourself out of
the jam. You're on your own.....

That old Public Notice is the problem, it is not the solution.

Perhaps someone will take it up with the Five Gnomes and see if
they can get it right this time. As if they will know what we are
talking about. ggg

--
73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

On Wed, 17 Sep 2003 17:14:03 GMT, Bill Sohl wrote:


I read that when it was initially out and have no recollection
of the "out-of-band" transmit aspect. The issue always was
focused on amteur rigs that could also recieve (i.e. listen to)
police broadcasts from an automobile.

See my posting on that. The preemption only covered receive
capability. Gotta read the footnotes, too.

Don't get me wrong.....I, too, feel that if it is not -used- to
transmit, it's no one's business, but until and unless the situation
is clarified, it is what it is.

If you were to ask me if an automobile proceeding down Main Street
needs a rider on a horse to proceed it with a blue lantern, the
answer might be "yes" if the old ordinance has never been removed.
That doesn't mean that I agree with it, or that the ordinance is not
stupid - it means that that's what it still says.

Today there are several HF/VHF rigs that can do so. IC-706 has 6m and
2m, several other HF rigs now cover HF plus 6, 2 and 440.
In all the cases of harrased hams (harassed by police) in states with
laws forbidding listening to police transmissions, the issue was
always listening to..not transmitting on, police frequencies.

It's time for the Five Gnomes to revisit the situation - as if they
know what we are talking about. We all know that ham radio issues
are not high on the Totem Pole at the FCC any more.

Here in NJ we finally changed the old state law around 1994.

My rock-bottom stance is that such statutes should clearly indicate
that what is prohibited is radio equipment used in connection with
illegal activity - nothing more. That is a legitimate law
enforcement objective, and does not involve the law enforcement
officers (who are not qualified technicians) in determining if the
equipment has been modified or whether it has the capability of
transmitting and if so on what frequencies.

--
73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

On Fri, 19 Sep 2003 11:43:57 -0400, Richard J Hasbro wrote:

Perhaps someone will take it up with the Five Gnomes and see if
they can get it right this time. As if they will know what we are
talking about. ggg

--
73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon



Will you please check & correct your posting headers?
You are posting to this forum using incorrect headers.

What is there in the headers that you object to?

Thank you,

You're welcome.

Rich
Detroit, MI
Hasbro Tronics LTD

--
73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

"Phil Kane" wrote in message
et...
On Wed, 17 Sep 2003 17:14:03 GMT, Bill Sohl wrote:


I read that when it was initially out and have no recollection
of the "out-of-band" transmit aspect. The issue always was
focused on amteur rigs that could also recieve (i.e. listen to)
police broadcasts from an automobile.

See my posting on that. The preemption only covered receive
capability. Gotta read the footnotes, too.

OK, that being the case, the few actual state laws I know about don't
question transmit, but rather only make it illegal
to be able to listen ... usually only in a vehicle...except (I think)
in either FL or KY.

Don't get me wrong.....I, too, feel that if it is not -used- to
transmit, it's no one's business, but until and unless the situation
is clarified, it is what it is.

If you were to ask me if an automobile proceeding down Main Street
needs a rider on a horse to proceed it with a blue lantern, the
answer might be "yes" if the old ordinance has never been removed.
That doesn't mean that I agree with it, or that the ordinance is not
stupid - it means that that's what it still says.

Today there are several HF/VHF rigs that can do so. IC-706 has 6m and
2m, several other HF rigs now cover HF plus 6, 2 and 440.
In all the cases of harrased hams (harassed by police) in states with
laws forbidding listening to police transmissions, the issue was
always listening to..not transmitting on, police frequencies.

It's time for the Five Gnomes to revisit the situation - as if they
know what we are talking about. We all know that ham radio issues
are not high on the Totem Pole at the FCC any more.

Here in NJ we finally changed the old state law around 1994.

My rock-bottom stance is that such statutes should clearly indicate
that what is prohibited is radio equipment used in connection with
illegal activity - nothing more.

That is exactly how we changed the NJ law. Today, anyone can
have a scanner anywhere in NJ (home, car, etc) and unless they are
using the scanner in connection with illegal criminal activity,
there's no violation.

That is a legitimate law
enforcement objective, and does not involve the law enforcement
officers (who are not qualified technicians) in determining if the
equipment has been modified or whether it has the capability of
transmitting and if so on what frequencies.

Agreed.

Cheers,
Bill K2UNK

On Sat, 20 Sep 2003 01:28:33 GMT, Keith wrote:

Several years ago a cop issued a three year old child a
ticket for trespassing. Of course, rational minds stopped that insanity.

Send said cop back to training.......

If
you had been the DA I think you would have attempted to get the three year
old charged as a adult and probably thrown in a stalking charge to seal his
fate.

You thunk wrong. I would have attempted to get said cop examined by
a shrink.

Stop playing the fool about what I would think or not think,
especially about the law and how I would apply it. By your own
declaration you have no qualifications as an attorney and are
therefore unqualified to debate with me as an equal or better in
that regard.

--
73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

On Fri, 19 Sep 2003 15:52:35 -0400, Richard J Hasbro wrote:

Your postings are reading out garbled
and/or incomplete on some news readers, due to incorrect
headers. Excuse me for bothering you...sheeeesh!

What in the header is incorrect? My outgoing character set is ISO
8859-1 (Latin 1).

If it is something that can be "fixed" at this end, I'll look ito
it.

If it's something that my ISP is adding, well, that's beyond my
control.

--
73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

On Sat, 20 Sep 2003 00:32:50 -0400, Troll Patrol wrote:

Stop playing the fool about what I would think or not think,
especially about the law and how I would apply it. By your own
declaration you have no qualifications as an attorney and are
therefore unqualified to debate with me as an equal or better in
that regard.

Kane hits another perfect "Ten" on the
troll-o-meter

TROLL-O-METER
0 1 2 3 4 5 6 7 8 9 10
/
/
/
/
/
/
/
Troll-O-Meter Reading


Troll Patrol HQ

Mission Accomplished. Over and Out.

--
73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon