I hear all this crap about K1MAN violating the FCC rules but the FCC
violates their own rules..

Sec. 326. - Censorship

Nothing in this chapter shall be understood or construed to give the
Commission the power of censorship over the radio communications or signals
transmitted by any radio station, and no regulation or condition shall be
promulgated or fixed by the Commission which shall interfere with the right
of free speech by means of radio communication



Todd N9OGL




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On Wed, 22 Dec 2004 06:11:04 -0600, Todd Daugherty wrote:

I hear all this crap about K1MAN violating the FCC rules but the FCC
violates their own rules..

Sec. 326. - Censorship

Nothing in this chapter shall be understood or construed to give the
Commission the power of censorship over the radio communications or signals
transmitted by any radio station, and no regulation or condition shall be
promulgated or fixed by the Commission which shall interfere with the right
of free speech by means of radio communication

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

(b) look up the case law based on that section and see why there is
no "free spech" right in an amateur license.

--
Phil Kane

Hello, Phil

I notice that the broadcast giants are getting right into line with the
administration.

Just for grins, I looked up the *big* newsmakers.

From ABC news:
1) Mosul attack was suicide bomber
(ok, sounds like news)
2) Duct tape fashions
(huh? Run that by me again? *Top* news?)

Top science news:
1) Site of Jesus' miracle said to be found
2) New forest plan would lessen restraints.
(hmmm ... how'd that get by, unless it has been "spun" properly?)

Censorship doesn't seem at work here; but fear might.

I've been bookmarking news sites in Australia and England. I don't worry
about the BBC or Voice of America HF broadcasts as many have left the
airwaves and BPL will likely take out the rest.

I'm hoping that some of these news sites (not from the middle east, of
course - I'm talking Australia and England with a *perhaps* on Canada) don't
suddenly "disappear" due to "technical difficulties" ....


Best regards from Rochester, NY
Jim



"Phil Kane" wrote in message
news.com...
On Wed, 22 Dec 2004 06:11:04 -0600, Todd Daugherty wrote:

I hear all this crap about K1MAN violating the FCC rules but the FCC
violates their own rules..

Sec. 326. - Censorship

Nothing in this chapter shall be understood or construed to give the
Commission the power of censorship over the radio communications or
signals
transmitted by any radio station, and no regulation or condition shall be
promulgated or fixed by the Commission which shall interfere with the
right
of free speech by means of radio communication

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

(b) look up the case law based on that section and see why there is
no "free spech" right in an amateur license.

--
Phil Kane

The courts have decided over and over again that the FCC rules are to be
"content-neutral" as a matter of fact some FCC rules in the past have been
thrown out because they were not "content-neutral".Sable Communications v.
FCC: The Government may, however, regulate the content of
constitutionallyprotected speech in order to promote a compelling interest
if it chooses the least restrictive means to furtherthe articulated
interest... The Government may serve this legitimate interest, but to
withstand constitutionalscrutiny, 'it must do so by narrowly drawn
regulations designed to serve those interests without
unnecessarilyinterfering with First Amendment freedoms. It is not enough to
show that the Government's ends arecompelling; the means must be carefully
tailored to achieve those ends'""The must-carry rules are content-neutral,
and thus are not subject to strict scrutiny" Turner Broadcasting Co. Inc v.
FCC (U.S. Supreme Court 1994) The FCC rules are content-neutral only if the
content-based regulation of communication media is narrowly tailored to a
compelling government interest. As for free speech on the radio. The Supreme
Court has repeatedly stated that there is no constitutional right to use
radio facilities without a license and that the FCC has the authority to
regulate the radio spectrum. See Red Lion Broadcasting Co. v. FCC, 395 U.S.
367, 388 (1969). See National Broadcasting v. United States 319 U.S. 190,
227 (1943) ("The right to free speech does not include . . . The right to
use the facilities without a license,"). See Dunifer v. FCC (1997) ("Mr.
Dunifer doesn't have the right to challenge the constitutionality of the FCC
rules, including the his first amendment challenge because Mr. Dunifer never
applied for a license or asked for a waiver"). See Wait Radio v. FCC; the
U.S. Court of Appeal returns an application and a waiver to FCC to have the
FCC take a look a "hard-look" at the waiver including Wait Radio first
amendment challenge.

Todd N9OGL

"Phil Kane" wrote in message
news.com...
On Wed, 22 Dec 2004 06:11:04 -0600, Todd Daugherty wrote:

I hear all this crap about K1MAN violating the FCC rules but the FCC
violates their own rules..

Sec. 326. - Censorship

Nothing in this chapter shall be understood or construed to give the
Commission the power of censorship over the radio communications or
signals
transmitted by any radio station, and no regulation or condition shall be
promulgated or fixed by the Commission which shall interfere with the
right
of free speech by means of radio communication

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

(b) look up the case law based on that section and see why there is
no "free spech" right in an amateur license.

--
Phil Kane






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Phil,

That is one of the of the problem in the Amateur Radio service. The Amateurs
only look at Part 97 and think that all these other rules don't apply to
them but in fact it does. Section 326 of the Communication Act of 1934 as
amended applys to all radio services. The same apply to section 301 and
section 501 or section 401....ect, ect

Todd N9OGL

"Phil Kane" wrote in message
news.com...
On Wed, 22 Dec 2004 06:11:04 -0600, Todd Daugherty wrote:

I hear all this crap about K1MAN violating the FCC rules but the FCC
violates their own rules..

Sec. 326. - Censorship

Nothing in this chapter shall be understood or construed to give the
Commission the power of censorship over the radio communications or
signals
transmitted by any radio station, and no regulation or condition shall be
promulgated or fixed by the Commission which shall interfere with the
right
of free speech by means of radio communication

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

(b) look up the case law based on that section and see why there is
no "free spech" right in an amateur license.

--
Phil Kane






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On Wed, 22 Dec 2004 17:27:42 -0600, Todd Daugherty wrote:

That is one of the of the problem in the Amateur Radio service. The Amateurs
only look at Part 97 and think that all these other rules don't apply to
them but in fact it does. Section 326 of the Communication Act of 1934 as
amended applys to all radio services. The same apply to section 301 and
section 501 or section 401....ect, ect

In _Howard v City of Burlingame_ (full citation given a while back
in another context) the Ninth Circuit clearly quoted the Comm Act
that an amateur license does not convey any rights other than that
which the FCC explicitly grants - Uncle Vern was attempting to
recover Section 1983 and 1988 damages for the City claiming that it
violated his "free speech rights" (which the court held non-existant)
by denying him a permit to erect an antenna structure of his own
choosing (which the court also held that he did not have any right
to).

And BTW, you quoted _Dunifer_ in your other post. If you read the
entire case, not just the decision, you would know that I was the
FCC's case supervisor in that case, and there's a lot more to that
case and how, when, and why the judge so ruled than appears in the
decision.

Where do you practice Communications Law, Todd?

--
73 de K2ASP - Phil Kane
Principal Attorney
Communications Law Center
San Francisco, CA

First Howard v City of Burlingame had to do with two things the first was a
local antenna ordinance and the second was Mr. Howard attempt to cover
attorney fees . It had nothing to do with the local or federal government's
attempt to regulate the content of the programming on the radio. Mr. Howard
believed he had the right under federal law to erect any antenna he wanted.
The court ruled that he did not have that right. The court said that the
city only had to accommodate Howard in some fashion, and suggested some
possible compromises. The Court of appeal said PRB-1 requires nothing more
than a balancing of the city's interest in promoting aesthetics and safety
against the amateur's desire for an effective antenna. If no suitable
compromise can be worked out with a particular amateur, his request for an
antenna can be rejected outright. No where in that ruling was it argued
about the content of a radio station or the first amendment right to uses a
radio. That court case had to do with PRB-1 and local antenna ordinances not
free speech and the content of a station. Howard believed he had a federal
right to erect an antenna as high as he wanted under PRB-1 (and not under
the first amendment) another misconception some amateurs have. I really didn't
look who was in the Dunifer case I was only concerned about the courts
ruling. It is ruling that other courts have looked upon when the FCC has
taken pirate operators to court. With the same results. That a person has no
right to broadcast without a license and has no right to challenge the rule
when that person hasn't applied for a license or a waiver. See Prayze FM vs.
FCC, Grid Radio vs. FCC, Any and All Radio Transmissions Vs FCC, Kind Radio
Vs FCC.

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.

Todd N9OGL


"Phil Kane" wrote in message
ganews.com...
On Wed, 22 Dec 2004 17:27:42 -0600, Todd Daugherty wrote:

That is one of the of the problem in the Amateur Radio service. The
Amateurs
only look at Part 97 and think that all these other rules don't apply to
them but in fact it does. Section 326 of the Communication Act of 1934 as
amended applys to all radio services. The same apply to section 301 and
section 501 or section 401....ect, ect

In _Howard v City of Burlingame_ (full citation given a while back
in another context) the Ninth Circuit clearly quoted the Comm Act
that an amateur license does not convey any rights other than that
which the FCC explicitly grants - Uncle Vern was attempting to
recover Section 1983 and 1988 damages for the City claiming that it
violated his "free speech rights" (which the court held non-existant)
by denying him a permit to erect an antenna structure of his own
choosing (which the court also held that he did not have any right
to).

And BTW, you quoted _Dunifer_ in your other post. If you read the
entire case, not just the decision, you would know that I was the
FCC's case supervisor in that case, and there's a lot more to that
case and how, when, and why the judge so ruled than appears in the
decision.

Where do you practice Communications Law, Todd?

--
73 de K2ASP - Phil Kane
Principal Attorney
Communications Law Center
San Francisco, CA






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On Thu, 23 Dec 2004 02:54:23 -0600, Todd Daugherty wrote:

First Howard v City of Burlingame had to do with two things the first was a
local antenna ordinance and the second was Mr. Howard attempt to cover
attorney fees . It had nothing to do with the local or federal government's
attempt to regulate the content of the programming on the radio.

I quote from the Ninth Circuit's opinion published at 937 F2nd
1376: [EMPHASIS added]

Howard then filed this lawsuit, claiming that the City's
ordinance and its decision were preempted by an FCC ruling known
as PRB-1. HE ALSO CLAIMED THAT THE CITY HAD VIOLATED THE FIRST
AMENDMENT AND 42 U.S.C. SEC. 1983, INTER ALIA. On cross-motions
for summary judgment, the district court held that PRB-1
preempted the City's decision-making powers and required it to
"reasonably accommodate" Howard's request. It found the City's
grounds pretextual, ordered the City to reconsider the matter
and suggested some avenues for compromise. IT ALSO GRANTED
SUMMARY JUDGMENT TO THE CITY ON HOWARD'S OTHER SEVEN CLAIMS,
WHICH IT TERMED "MAKEWEIGHT."

II. Free Speech Claim and Cross-Appeal

The district court correctly held that the City's zoning
ordinances are legitimate, content-neutral time, place and
manner restrictions, with only a tangential relationship to
speech. [ Citations deleted ] CONTENT-NEUTRAL ZONING ORDINANCES
SUCH AS THESE HAVE LONG BEEN HELD TO BE PERMISSIBLE RESTRICTIONS
ON FREE SPEECH. See, e.g., City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 808, 80 L. Ed. 2d 772, 104
S. Ct. 2118 (1984); Schroeder v. Municipal Court of Los Cerritos
Judicial District, 73 Cal. App. 3d 841, 141 Cal. Rptr. 85
(1977), appeal dismissed, 435 U.S. 990, 56 L. Ed. 2d 81, 98 S.
Ct. 1641 (1978) (LIMITATION OF ANTENNA HEIGHT NOT "BLANKET
PROHIBITION" ON EXPRESSION). We therefore affirm on this point
as well.

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.

In other words you are not a lawyer but you like to play one in
public....

A pity that that "member of the House Subcommittee on
Telecommunication" doesn't get his/her advice from real
communications attornies who. like myself, have no other axe to
grind except to support quality communication regulation and
compliance therewith.

--
73 de K2ASP - Phil Kane

Todd Daugherty wrote:


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.

Who?

Phil Kane wrote:


Where do you practice Communications Law, Todd?

Right here on the internet, after all he has access to communications
web sites so that makes him a expert.