On Tue, 28 Dec 2004 20:34:46 -0500, Bert Craig wrote:

The penalty can be challenged in several ways. The subject can
request Reconsideration on the Bureau level (several steps above the
issuing officer) and further up, a Review by the full Commission.

Sounds good, but is it expensive?

These are all written petitions, and it depends on whether one wants
to hire an attorney to do it or can do it themselves. Most good
regulatory attorneys charge upwards from $200 per hour - in most
cases it's a worthwhile investment whether the individual has a
winning case or not.

Or the subject can just refuse to pay. Then, the next move is up to
the Commission to force payment in either of two ways - a full
evidentiary hearing before an Administrative Law Judge or a full
trial de novo in Federal District Court. In either case, the burden
of proceeding (going to trial) and the burden of proof (proving the
violation that the subject is accused of) are upon the FCC. IOW,
the subject is innocent until proved guilty by a preponderance of
evidence before a neutral tribunal and the subject gets his/her "day
in court". Either proceeding can be appealed to the Federal
Appellate Courts where the subject will have to prove that the FCC
didn't follow the procedural rules to the letter - rarely does the
Court of Appeals reverse the FCC on substantive matters within the
FCC's competence.

Also good, but again, sounds expensive. Is there ever a point where the
accused has the right to a court appointed attorney?

No, because both monetary and asset forfeiture proceedings are civil
proceedings, not criminal. There are attornies and organizations
which represent folks pro bono, but the issue has to be one which
meets the agenda of the provider.

If one is charged with a criminal violation of the U S Code,
however, one is entitled to a public defender if one can't afford a
defense attorney.

Then again, one is always allowed to represent oneself, and thereby
demonstrate to the court that s/he is either a bozo or has a good
legal education. In my experience it's always been the former.

I really do love when the FCC nails the perp, HOWEVER, I'm just not an "ends
justifies the means" kind of guy. Let the punishment fit the crime. I can
think of very little an individual can do re. RF energy justifying a
$21,000.00 penalty...that's just MHO, of course.

"Don't do the crime if you can't do the time...." The vast majority
of high dollar forfeitures are levied where the individual has
demonstrated disregard of either the Commission's rules or the
Commission's authority. It sort of grabs the individual's attention
and can be reduced (but not enlarged) during the proceedings if
sufficient cause is shown.

--
73 de K2ASP - Phil Kane

"Phil Kane" wrote in message
ganews.com...

When what you are doing is authorized by license, whether Federal
or State, as long as you are within the activities authorized by
that license, you are covered.
. . .

Phil - This is a little off subject, but I would appreciate your comments on
what current FCC practice/policy is regarding minor amateur rule
infractions. Haven't had any recent problems, but years ago I was caught
with an AM sideband a little over the edge of the voice band. In those days,
you responded to the FCC with an apology, and if it happened three times in
two years, I understood that there would be a two-year license suspension.
No fines involved. I know there is little if any monitoring going on these
days for such things, but what is the normal penalty for what could be
reasonably considered unintentional out of band violations? Are fines
assessed for first or second-time offenders?

ak

(Now and then I catch myself calling a phone station below 21.2 MHz,
thinking I was still on 20 meters.)

In article ws.com, "Phil
Kane" writes:

I for one thank Phil for sharing the results of his vast experience and his
relationship with the FCC with us. If he didn't care, he would simply say
nothing...and we would remain ignorant.

I love to teach the subject.....

Good on you, Phil. My thanks also.

Question: Can you explain "sunshine" and "sunshine agenda" as
it is used by the FCC and shown in brilliant red notes on the ECFS
Comment listings?

[my Volume 1 of Title 47 is still at the office...]

I gather it has something to do with documents past a certain date
that the "staff is not supposed to consider." On the other hand,
specifically for Docket 04-37 on BPL, some documents are in public
view past any posted dates for same but no "sunshine" mention.

Thanks.

Phil - This is a little off subject, but I would appreciate your comments on
what current FCC practice/policy is regarding minor amateur rule
infractions. Haven't had any recent problems, but years ago I was caught
with an AM sideband a little over the edge of the voice band. In those days,
you responded to the FCC with an apology, and if it happened three times in
two years, I understood that there would be a two-year license suspension.
No fines involved. I know there is little if any monitoring going on these
days for such things, but what is the normal penalty for what could be
reasonably considered unintentional out of band violations? Are fines
assessed for first or second-time offenders?

ak

(Now and then I catch myself calling a phone station below 21.2 MHz,
thinking I was still on 20 meters.)


I've made that kind of mistake on 40m once or twice. I suspect that
the FCC figures that most people will make occasional errors
from time to time, and that most people will spot the error
and correct it themselves. Most of the enforcement actions
you hear about are idiots that keep on committing the offenses.
Such that it becomes clear that they are doing it on
purpose and are not oversights.

On Mon, 27 Dec 2004 20:01:12 GMT, robert casey wrote:

I would appreciate your comments on
what current FCC practice/policy is regarding minor amateur rule
infractions.

I've made that kind of mistake on 40m once or twice. I suspect that
the FCC figures that most people will make occasional errors
from time to time, and that most people will spot the error
and correct it themselves. Most of the enforcement actions
you hear about are idiots that keep on committing the offenses.
Such that it becomes clear that they are doing it on
purpose and are not oversights.

That hits the nail on the head. For minor infractions that are not
willful or repeated, the practice is to issue a Notice of Violation,
which requires a written response as to how the problem came about
and how you are going to prevent it from happening in the future.

A monetary penalty can be issued only where the violation is
willful (meaning that you know that you are doing the act, not
necessarily that you intended to violate the law) or repeated (more
than one day).

Whewn one starts to rack up "brownie points", the Commission has
ample ammunition to decide whether the licensee has the
qualifications to remain a licensee.

--
73 de K2ASP - Phil Kane

"Phil Kane" wrote in message
ganews.com...
On Sun, 26 Dec 2004 08:00:43 -0600, Todd Daugherty wrote:

United States Code are also part of the FCC rules

You get ZERO on the first exam in Legal Research. U S Code contains
statutes passed by The Congress. The FCC Rules, part of the Code
of Federal Regulations, are regulations promulgated by the Commission.

Go and learn.

--
73 de K2ASP - Phil Kane

I don't understand why the animosity, to the point of profanity, towards
Phil? He has a very thorough working knowledge of the legal system,
particularly as it relates to FCC rules/regs and communications.

Somehow, I don't believe it's Phil at all, although his delivery may rub
some the wrong way. Phil is merely the messenger re. FCC rules/regs and is
nice enough to take some of his recreational time to share some of his
knowledge with us.

Don't misunderstand me, I'm no big fan of the FCC and rank them right up
there with the IRS as an entity that is not truly accountable to "we the
people." (Despite Phil's explanation of how they are appointed by *this* who
is appointed by *that* who ultimately derives their lawmaking powers from
*the other.*) The "this, that and the other" way of making laws where a
$21,000.00 sentence can be handed down while putting the onus on the accused
to prove themselves innocent (From a 1934 Act, I might add.) before a
administrative judge borders on the obscene. But until someone has the
stones (...and the discretionary means.) to challenge that process...that's
the way it is. (I guess I'm just a good old "checks and balances" kind of
guy.) This likely means never.

I for one thank Phil for sharing the results of his vast experience and his
relationship with the FCC with us. If he didn't care, he would simply say
nothing...and we would remain ignorant.

--
Vy 73 de Bert
WA2SI
FISTS #9384
QRP ARCI #11782

"Phil Kane" wrote in message
ganews.com...
On Tue, 28 Dec 2004 16:20:45 -0500, Bert Craig wrote:

$21,000.00 sentence can be handed down while putting the onus on the
accused
to prove themselves innocent (From a 1934 Act, I might add.) before a
administrative judge borders on the obscene.

Follow the bouncing ball....

....and we're off!

The Notice of Liability (NAL) says "apparently liable to....for....."
and gives the subject a chnance to say "hey, FCC, that isn't fair
and antyhow I can't pay because...." The Notice of Forfeiture (NOF)
is the next step and that says "you are liable.....for ......" and
the issuing officer is required to consider and evaluate the
subject's reply (or failure to respond) in finalizing the amount in
conjunction with the Regional Counsel of the Enforcement Bureau.

The penalty can be challenged in several ways. The subject can
request Reconsideration on the Bureau level (several steps above the
issuing officer) and further up, a Review by the full Commission.

Sounds good, but is it expensive?

Or the subject can just refuse to pay. Then, the next move is up to
the Commission to force payment in either of two ways - a full
evidentiary hearing before an Administrative Law Judge or a full
trial de novo in Federal District Court. In either case, the burden
of proceeding (going to trial) and the burden of proof (proving the
violation that the subject is accused of) are upon the FCC. IOW,
the subject is innocent until proved guilty by a preponderance of
evidence before a neutral tribunal and the subject gets his/her "day
in court". Either proceeding can be appealed to the Federal
Appellate Courts where the subject will have to prove that the FCC
didn't follow the procedural rules to the letter - rarely does the
Court of Appeals reverse the FCC on substantive matters within the
FCC's competence.

Also good, but again, sounds expensive. Is there ever a point where the
accused has the right to a court appointed attorney?

BTW, this proceure is outlined in Sections 503 and 504 of the Comm
Act, which were amended in major part in 1978 to increase the
penalties to current levels and define the procedures outlined
above.

I really do love when the FCC nails the perp, HOWEVER, I'm just not an "ends
justifies the means" kind of guy. Let the punishment fit the crime. I can
think of very little an individual can do re. RF energy justifying a
$21,000.00 penalty...that's just MHO, of course.

But until someone has the
stones (...and the discretionary means.) to challenge that
process...that's
the way it is. (I guess I'm just a good old "checks and balances" kind of
guy.) This likely means never.

Several have tried but none have succeeded, including broadcasters
who have taken the procedure up to the Supreme Court of the United
States. It really doesn't have to get that far, because in legal
procedural cases, the decisions of the U S Court of Appeals for the
District of Columbia are considered "the word of God" by the Federal
regulatory agencies.

I for one thank Phil for sharing the results of his vast experience and
his
relationship with the FCC with us. If he didn't care, he would simply say
nothing...and we would remain ignorant.

I love to teach the subject.....

Despite being somewhat opinionated re. some of the Commission's practices, I
really do appreciate you taking the time to teach it. Take care es...

--
73 de K2ASP - Phil Kane

--
Vy 73 de Bert
WA2SI
FISTS #9384
QRP ARCI #11782

"Dave Heil" wrote in message
...
Todd Daugherty wrote:

"Phil Kane" wrote in message
ganews.com...
On Thu, 23 Dec 2004 18:45:19 -0600, Todd Daugherty wrote:

(a) it's not an FCC rule and is open to court interpretation.


What do you mean it's not an FCC rule?? I think you better look again
try
47
USC 326 or Title 47 of the United States Code (Telegraphs, Telephones,
and
Radiotelegraphs), Chapter 5 ( WIRE OR RADIO COMMUNICATION), Subchapter
3
(SPECIAL PROVISIONS RELATING TO RADIO), Part 1 (General Provisions),
Subsection 326 (Censorship)

You didn't quote an FCC Rule (which are codified in Title 47 of
the Code of Federal Regulations). You quoted a Federal statute
(which is codified in the U.S. Code). THEY "AIN'T" THE SAME !!

So that's means no one should have to abide by Section 301 sense it's
not a
FCC rule. right?
and secondly where in any of my ****ing post did I state I'm a lawyer?
NOWHERE! So my in my ****ing opinion don't put words in my mouth.


Phil asked you the following:

"Where do you practice Communications Law, Todd?"

You replied:

"As for your question I have been very active in the micro broadcasting
movement and I'm very knowledgeable when it comes to radio law. I am
current working with a member of the House Subcommittee on
Telecommunication in regards to the FCC and the licensing processing
including filing windows and waivers."

You didn't really provide an answer to Phil's question. Now you've
resorting to multiple occurrences of the "eff" word in defending the
indefensible. You've done so in barely corherent sentences. Do you
really want to argue communications law with an expert in the field?

There is really a heuristic approach you could try, Todd. Go ahead an
push the envelope on the free speech issue on the air and see if the ax
falls on you. If it never does, your theory is right or the feds aren't
paying any attention to you right now.

Oh, I plan to, come January I will be running a program on the ham bands.
I'll let you all know when and time.

Todd N9OGL




By the way, what does the micro broadcasting "movement" have to do with
amateur radio? I'm set on sticking with the amateur radio "movement".

Dave K8MN





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