think the ECPA contradicts itself in several places, but that subject
is for another post.

As for this post, all of you who wanted the government to recognize
cell phone transmissions and radio transmissions as the same thing (and
that includes me, so no offense meant to you all) have finally gotten
their wish which proves the old saying

"Be careful what you wish for. It just might come true."

A judge has finally recognized cell phone transmissions and radio
transmissions as the same thing and in so doing effectively ruled that
all mobile radio transcievers are now against the law in the U.S.

And it seems that the federal law that says it takees precedence over
all local and state laws contrary to using a ham radio while mobile,
and exempts all hams from any local or state laws against using a
mobile ham radio while mobile, didn't do any good either,and didn't
protect the ham, as the ham operator was still ruled guilty by the
judge. It seems it didn't protect him from anything.

Here's the story: A ham radio operator was talking on his mobile ham
radio rig while mobile, so a cop pulled him over under the cell phone
law for using his "cell phone" while driving. ( since to use the
radio, the ham had to have one hand on the microphone instead of both
hands on the steering wheel).

The ham fought it in court, and the radio was described exactly to the
judge.

After hearing about how the radio actually was, the judge ruled that a
mobile ham radio is still similar enough to a cell phone that it's
against the law to use one while driving and that as such, the ham is
indeed still guilty.

Now, since the judge ruled that, and mobile transcievers are the same
way, you have to have one hand on the microphone instead of both hands
on the steering wheel, the judge's ruling, in effect, also outlaws
using all mobile CB radio transcievers in the U.S.

So why doesn't the cop who pulled the ham over, and the judge, go after
the FCC for illegally ruling and passing illegal radios as completely
legal for the public to use in the U.S.?

Or after the manufacturers for fraudently selling illegal radios to
consumers as legal to use in the U.S.

or after the FCC for fraudently and illegally approving these illegal
radios to fraudently be sold as legal for thre public to use in the
U.S.?

( Yet the same cop who pulled the ham over is probably allowed to use
the same type of radio. one with a hand-hed microphone).


Here's the source of the story:


Source: This Week in Amateur Radio
Categories: Amateur Radio News


17:45


Ham Operator ticketed for using his ''cell phone''


Joey Hernandez, W2JLH, was issued a citation for operating his amateur
radio while mobile. He went to court where the judge presiding had to
consult a law book regarding the issue, and when the radio was
described to him, he pronounced a guilty verdict to Mr. Hernandez,
saying that the description of the use of the radio was too similar to
the use of a cell phone and therefore he was guilty as charged. More on

this issue can be found at the linked URL.
Source: This Week in Amateur Radio
Categories: Amateur Radio News

A lot of fuss was made of this on eHam or something, big screaming
headline about Ham Radio now being illegal.

It isn't illegal, Hams just need to be smarter. A law preventing the
use of any hand microphone was passed many years ago in the state of
Victoria. VK3's simply use boom mics or headset mics.

A similar law exists in VK1, where I was told to make sure I was not
being obvious with the use of my hand mic, if there was a police car in
the vicinity.

Brad VK2QQ

It's not rocket science.

On 11 Dec 2005 23:30:55 -0800, "bradvk2qq" wrote:

1) The law in NY *specifically states* that the device in question be
connected to the public switched telephone network. The ruling is
appealable on that ground alone.

""Wireless telephone service" shall mean two-way real time voice
telecommunications service that is interconnected to a public switched
telephone network and is provided by a commercial mobile radio
service, as such term is defined by 47 C.F.R. S 20.3."

Most hams operate simplex, even when using a phone patch, so the law
doesn't apply, as written. (New York law requires pleas and
convictions on summonses *as written*, not as someone wants things to
be. "The law doesn't say exactly what it has to say for the ticket
you wrote to be upheld? Tough. Next time, write it properly." - me,
to a cop who complained to me, his boss, about a ticket that got
thrown out.)

2) The law in NY *specifically states* that the device in question be
held to tone's ear. He held it to his mouth?. Appealable on that
ground alone.

"'Using' shall mean holding a mobile telephone to, or in the immediate
proximity of, the user's ear. "

Pretty stupid, holding a mic to your ear. "There better be music
coming out of that thing."

Try these:

"'Engage in a call' shall mean talking into or listening on a
hand-held mobile telephone ..."

"(a) Except as otherwise provided in this section, no person shall
operate a motor vehicle upon a public highway while using a mobile
telephone to engage in a call while such vehicle is in motion. (b) An
operator of a motor vehicle who holds a mobile telephone to, or in the
immediate proximity of his or her ear while such vehicle is in motion
is presumed to be engaging in a call within the meaning of this
section. The presumption established by this subdivision is rebuttable
by evidence tending to show that the operator was not engaged in a
call."

It doesn't seem as if either the spirit or the letter of the law were
violated. It seems that an overly-inflated ego decided to throw his
pork around.

Traffic tickets in NY are adjudicated by an administrative
adjudication office, and the officiating person is a hearing officer,
not a judge. Such rulings aren't even precedential in the office in
which they were issued. A hearing officer can contradict his ruling
in his very next ruling, and the fact that he just ruled the opposite
isn't relevant.

I hope the guy appeals the case. It won't look too good for the
hearing officer when the DA decides to not fight it.

Al, was this guy using a speaker mic?

I'm just wondering because I read that the Judge said he was holding it
to his ear like a cellphone, and a speakermic would do that, creating a
loophole for the judge to uphold the charge.

I can't help wondering if the Ham had a bad attitude as well. Police
will dig their heels in if dared or badmouthed, and from what I've seen
from most American newsgroups, Americans aren't shy about coming
forward with abuse.

On 14 Dec 2005 00:40:07 -0800, "bradvk2qq" wrote:

Al, was this guy using a speaker mic?

It wouldn't matter unless he was also on an autopatch and running
duplex.

I'm just wondering because I read that the Judge said he was holding it
to his ear like a cellphone, and a speakermic would do that, creating a
loophole for the judge to uphold the charge.

Nope - ALL parts of the law have to be met - it's an "and" construct,
not an "or" construct.

I can't help wondering if the Ham had a bad attitude as well.

A bad one, or he simply didn't know how to fight it. I can't tell you
the number of people I've seen come up before a hearing officer with a
ticket that was invalid on its face, and end up being found guilty.

Police will dig their heels in if dared or badmouthed, and from what I've seen
from most American newsgroups, Americans aren't shy about coming
forward with abuse.

I always tell people, when the subject comes up, to accept the ticket
without a word, unless it starts off as a friendly "confrontation", in
which case you might try joking your way out of it. If the cop is
determined to write you, he will. There's only one way to prevent
that - and your badge has to outrank his to do it. Take the ticket
and fight it in court/AAB.

Traffic tickets in NY can be heard in a local Criminal Court, i.e. a
Village or City Court (in actual fact, MY village has a traffic Court
with a real Village Justice and a RECORD (Court Reporter).
A ruling in that Court is not binding on anyone,as it is the lowest
Court in the State and NOT an appellate Court, however the ruling CAN
be cited by other Courts, at least until it is overturned on the
Apellate level.
So there you have it,
Traffic infractions are adjudicated by a hearing officer in NYC and
some other jurisdictions, but NOT all, AND.....
Some VTL matters are MISDEMEANORS, which can only be heard in Criminal
Court (such as scanner in the vehicle).

On Mon, 12 Dec 2005 21:04:51 -0500, Al Klein
wrote:

On 11 Dec 2005 23:30:55 -0800, "bradvk2qq" wrote:

1) The law in NY *specifically states* that the device in question be
connected to the public switched telephone network. The ruling is
appealable on that ground alone.

""Wireless telephone service" shall mean two-way real time voice
telecommunications service that is interconnected to a public switched
telephone network and is provided by a commercial mobile radio
service, as such term is defined by 47 C.F.R. S 20.3."

Most hams operate simplex, even when using a phone patch, so the law
doesn't apply, as written. (New York law requires pleas and
convictions on summonses *as written*, not as someone wants things to
be. "The law doesn't say exactly what it has to say for the ticket
you wrote to be upheld? Tough. Next time, write it properly." - me,
to a cop who complained to me, his boss, about a ticket that got
thrown out.)

2) The law in NY *specifically states* that the device in question be
held to tone's ear. He held it to his mouth?. Appealable on that
ground alone.

"'Using' shall mean holding a mobile telephone to, or in the immediate
proximity of, the user's ear. "

Pretty stupid, holding a mic to your ear. "There better be music
coming out of that thing."

Try these:

"'Engage in a call' shall mean talking into or listening on a
hand-held mobile telephone ..."

"(a) Except as otherwise provided in this section, no person shall
operate a motor vehicle upon a public highway while using a mobile
telephone to engage in a call while such vehicle is in motion. (b) An
operator of a motor vehicle who holds a mobile telephone to, or in the
immediate proximity of his or her ear while such vehicle is in motion
is presumed to be engaging in a call within the meaning of this
section. The presumption established by this subdivision is rebuttable
by evidence tending to show that the operator was not engaged in a
call."

It doesn't seem as if either the spirit or the letter of the law were
violated. It seems that an overly-inflated ego decided to throw his
pork around.

Traffic tickets in NY are adjudicated by an administrative
adjudication office, and the officiating person is a hearing officer,
not a judge. Such rulings aren't even precedential in the office in
which they were issued. A hearing officer can contradict his ruling
in his very next ruling, and the fact that he just ruled the opposite
isn't relevant.

I hope the guy appeals the case. It won't look too good for the
hearing officer when the DA decides to not fight it.