April 2009 - arrl-odv - reflector.arrl.org

[arrl-odv:17657] Re: Legislative activity
by Marty Woll 16 Apr '09

16 Apr '09

Legislative activityDave, This sounds like a reasonable approach to a problem on which getting sustained action has been difficult in the past. If I understand your request correctly, you would like a few well-written letters of support from hams in selected - but not all - congressional districts at such time as the bill has been introduced and is assigned a bill number. A broader letter-writing campaign, I presume, would be encouraged if and when the bill makes it out of committee. Please confirm or correct my understanding. Thanks, Marty N6VI ----- Original Message ----- From: Sumner, Dave, K1ZZ To: arrl-odv Sent: Thursday, April 16, 2009 12:44 PM Subject: [arrl-odv:17656] Legislative activity The top ARRL legislative objective for the 111th Congress is to address private land use regulation of amateur antennas - in other words, to extend the PRB-1 "reasonable accommodation" provision to residential properties that are subject to CC&Rs. . . .

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[arrl-odv:17656] Legislative activity
by Sumner, Dave, K1ZZ 16 Apr '09

16 Apr '09

The top ARRL legislative objective for the 111th Congress is to address private land use regulation of amateur antennas - in other words, to extend the PRB-1 "reasonable accommodation" provision to residential properties that are subject to CC&Rs. In doing their rounds on our behalf late last year, John Chwat and his staff found sympathetic ears in the office of Texas Rep. Sheila Jackson-Lee. Thanks to David Woolweaver we now know what led to her interest in Amateur Radio. During last September's Hurricane Ike, she spent a great deal of time at the Harris County EOC in Houston including quite a bit of time with the amateurs who were on duty there. Based on the independent feedback that David has received we have every reason to believe that her interest is sincere. Rep. Jackson-Lee serves on the Committee on Homeland Security. Since our rationale for the federal interest in private land use regulation of amateur antennas hinges largely on emergency preparedness, she expressed willingness to introduce a bill tailored for referral to that committee. The draft bill worked out last November between John Chwat and her staff, with input from Chris Imlay, calls for the Secretary of Homeland Security to undertake a study on the uses and capabilities of Amateur Radio communications in disaster relief, including identifying "unreasonable or unnecessary impediments to enhanced Amateur Radio communications, such as the effects of private land use regulations on residential antenna installations, and shall make recommendations for eliminating such impediments." The study report would include an evaluation of Section 207 of the Telecommunications Act of 1996 and would recommend "whether that Section should be expanded to mandate a prohibition of private land use restrictions that impair" emergency communications preparations by amateurs. In other words, this approach envisions a two-step process: A report to Congress from the Secretary of Homeland Security recommending our amendment of Section 207 of the Telecommunications Act followed by a second bill to implement the recommendation. While we have been anticipating the introduction of this legislation ever since the opening of the new Congress, it has not yet been forthcoming. However, John has been assured that Rep. Jackson-Lee intends to introduce the bill when Congress returns next week. He and his staff have been working to line up original co-sponsors, particularly among the membership of the Committee on Homeland Security. To that end, several Directors have been asked to send faxes to Representatives in their Divisions, following up on contacts made by John's office. The response by Directors has been excellent and greatly appreciated. John Chwat also has requested some constituent letters from members in the targeted Congressional districts. While one or two letters for each district would suffice at this stage, a couple of Directors have emailed all of the members in the targeted districts. The faxes drafted for delivery yesterday did not address the specifics of the legislation, so this naturally has led a number of members to ask for more details as to what they are being asked to support. I hope this memo will help you answer questions you may receive. Feel free to pass along questions either to John or myself. Because the bill has not actually been introduced, it could be extremely damaging for a copy to be put into circulation outside the Board. I am attaching the draft bill in the form it was prepared last November, but PLEASE keep its contents confidential until legislation is actually introduced. To recap: The anticipated bill for which we are seeking support is titled the "Amateur Radio Emergency Communications Enhancement Act of 2009." The bill directs the Secretary of Homeland Security to undertake a study on the uses and capabilities of Amateur Radio communications in disaster relief, including identifying "unreasonable or unnecessary impediments to enhanced Amateur Radio communications, such as the effects of private land use regulations on residential antenna installations, and shall make recommendations for eliminating such impediments." The bill further directs that the study report include an evaluation of Section 207 of the Telecommunications Act of 1996 and to recommend "whether that Section should be expanded to mandate a prohibition of private land use restrictions that impair" emergency communications preparations by amateurs. The report is to be provided to Congress within 180 days of enactment. When introduced, the bill is expected to be referred to the Committee on Homeland Security. 73, Dave Sumner, K1ZZ <<Legislation 2009 Draft Bill -- House 11 20 08 version.doc>>

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RE: [arrl-odv:17651] Re:RE: RE: Defintion of Amateur Equipment
by John Bellows 16 Apr '09

16 Apr '09

Dave: Excellent points if presented in court but of little value when the FCC attorneys take the peculiar position that the United States cannot make technical arguments through expert testimony defending the accuracy of Commission regulations. The jurisdictional statute prohibits those arguments from being made in district court, and specifically reserves those arguments for the court of appeals. The FCC attorney appears have confused the question of whether the standard imposed by the regulation was accurate with evidence of what steps needed to effect the change. The trial court can address the evidence (if presented) with confidence the appellate court can address whether the regulation is sufficiently clear to be enforceable. The bottom line is that there isnt anything we can do about this ruling and there may be little we can do about the way the government presents an enforcement case but we can be vigilant and vocal about maintaining those regulations dear to the heart of amateur radio. 73, Jay, KØQB -----Original Message----- From: Sumner, Dave, K1ZZ [mailto:dsumner@arrl.org] Sent: Thursday, April 16, 2009 1:11 PM To: arrl-odv Cc: Henderson, Dan N1ND Subject: [arrl-odv:17651] Re:RE: RE: Defintion of Amateur Equipment Chris, I would contend that if a 10-meter radio only indicates channel numbers and not frequencies, covers bands of channels that happen to conform to the unique channelization scheme used on CB (where, for example, channels 24 and 25 are between channels 22 and 23) and can be field-modified to operate on the 40 CB channels, its disingenuous to believe that it was not designed with that in mind. Furthermore, there is no legitimate market for such a 10 meter radio. I would be happy to so testify on behalf of the FCC and in fact was ready to do so in a Michigan case a number of years ago but the U.S. Attorneys office blew THAT case, too. Ironically, the easier it is to modify these radios the better off we are. The last thing we want is for them to be used on 10 meters! Dave From: Chris Imlay [mailto:w3kd@aol.com] Sent: Thursday, April 16, 2009 12:49 PM To: arrl-odv Cc: Henderson, Dan N1ND Subject: [arrl-odv:17648] Re: RE: Defintion of Amateur Equipment I haven't done that, Dave, but it would be interesting to know whether the device, out of the box, operates on Amateur bands exclusively. Frankly, I think that is where the line should be drawn; if the device operates out of the box exclusively on Amateur frequencies. Trying to rely on "mods" and how easy or hard it is to implement one seems a tough test to administer. There were apparently manufacturer changes to the radio at some time after it was initially marketed, according to the decision. Chris Christopher D. Imlay Booth, Freret, Imlay & Tepper, P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD(a)ARRL.ORG -----Original Message----- From: Sumner, Dave, K1ZZ <dsumner(a)arrl.org> To: arrl-odv <arrl-odv(a)reflector.arrl.org> Cc: Henderson, Dan N1ND <dhenderson(a)arrl.org> Sent: Thu, 16 Apr 2009 12:32 pm Subject: [arrl-odv:17646] RE: [arrl-odv:17644] Defintion of Amateur Equipment Its astonishing to me that the FCC could blow this case. If you google on Connex CX 3300HP its patently obvious that this is a CB rig. Dave < SPAN style="FONT-SIZE: 11pt; COLOR: #1f497d; FONT-FAMILY: 'Calibri','sans-serif'"> From: John Bellows [ <mailto:jbellows@skypoint.com?> mailto:jbellows@skypoint.com] Sent: Thursday, April 16, 2009 11:36 AM To: arrl-odv Cc: Henderson, Dan N1ND Subject: RE: [arrl-odv:17644] Defintion of Amateur Equipment Chris: Thanks for forwarding this interesting decision. FCC, at least in this proceeding, didnt want to address what constitutes easy modification. Given the unwillingness of FCC to address those admittedly difficult factual issues and the challenge of developing a more workable definition of easily modified I wonder if you think the modification of equipment ostensibly intended for use in the ARS for use in CB or adjacent frequencies is of suffic ient concern to FCC that they may consider modification of ARS non-certification rules? 73, Jay, KØQB -----Original Message----- From: Chris Imlay [ <mailto:w3kd@aol.com?> mailto:w3kd@aol.com] Sent: Thursday, April 16, 2009 9:05 AM To: arrl-odv Cc: <mailto:dhenderson@arrl.org> dhenderson(a)arrl.org Subject: [arrl-odv:17644] Defintion of Amateur Equipment Attached, FYI, is what I consider an absolutely fascinating decision by a United States District Court for the Middle District of Florida in Orlando. It is an attempt by FCC to coll ect a $7,000 monetary forfeiture against one Ben Metzger (no relation to Ed, surely!) for offering for sale a non-certificated CB transceiver. The issue in the case is the collectabililty of the forfeiture, and the defense by the Defendant Metzger that the transceiver in question, a Ranger transceiver marketed under the name "Connex CX 3300HP" is not in fact a CB transceiver but an Amateur transceiver (which requires no FCC certification). The decision turns on the extent to which the transceiver (which out of the box indisputably transmits only on Amateur frequencies) is "easily modifiable" to operate out of band. This case deals with a number of issues that the FCC has clearly struggled with for many years now, I believe extremely unsuccessfully. In the end, I think the debate rages over the old philosophical conundrum about how many parts on a bicycle need be changed before it becomes a "different" bicycle. In other words, I think the test that the FCC has created (which is met by the Court in a footnote with a raised eyebrow -- see footnote 7), that the "capability" of a device to operate out of band constitutes the intent of the marketer or seller of the device to market uncertificated devices is untenable. But that issue wasn't properly before the Court. FCC said that it could not offer evidence that the radio was "easily modifiable" to operate out of band, which was an odd position for it to take, because that was found by the Court (I think properly) to be=2 0the FCC's burden, and because the FCC failed to meet that burden, summary judgment was granted to Metzger. Perhaps FCC didn't want to go there because it knew that it was a deep mire that it was attempting to wade through; as Metzger pointed out, virtually all HF radios are capable of being modified to operate on other than ARS frequencies. The only question is what the mechanism need be for doing so. FCC argued that it could rely on its own publication much earlier of a list of radios that could easily be modified to operate on other than Amateur frequencies, and any challenge to that would have had to be made in the Court of Appeals, but that is a bootstrap argument that really is pretty weak; forfeiture collection is based on the facts of each case and there is little! d! oubt that the government has the burden of proof in such cases. One reason why this is such an interesting case is that it involves a radio that actually does require modification before it can operate on non-Amateur frequency allocations. Prior cases seem easier to me; they involved radios which operate primarily on non-amateur frequencies, and/or used emissions that are not typically used in the portions of the Amateur allocations in which they did operate out of the box. In this case, there was evidence from an engineer of the manufacturer that the device in fact was modified by the manufacturer because earlier versios of it were easy to modify to operate out of band, so they made it somewhat hard er to do so. Though the Court never decided the issue, because it found it possible to grant Summary Judgment to the Defendant Metzger (FCC having bailed on offering any evidence on the pivotal issue of "easily modifiable", there was going to be an attempt by Metzger, had the case gone further, to distinguish between radios that have switches that are user-accessible that enable or disable out-of- amateur- band operation and those which, like the Ranger radio here, require taking off the cover and soldering or unsoldering a component. The Court dangled the possibility that one test could be the time it took to do the mod, but you get the picture of an FCC test that is difficult to administer. Perhaps this case was bungled by FCC, but it strikes me that the decision will make it even more difficult in the future for FCC to police "freeband" radios than it has been, and it has been pretty hard already. 73, Chris W3KD Christopher D. Imlay Booth, Freret, Imlay & Tepper, P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile <mailto:W3KD@ARRL.ORG> W3KD(a)ARRL.ORG _____ <http://pr.atwola.com/promoclk/100126575x1220029082x1201385915/aol?redir =http:%2F%2Fad.doubleclick.net%2Fclk%3B213969145%3B35701480%3Bh> Great deals on Dell's most popular laptops - Starting at $479 _____ <http://pr.atwola.com/promoclk/100126575x1220029082x1201385915/aol?redir =http:%2F%2Fad.doubleclick.net%2Fclk%3B213969145%3B35701480%3Bh> Great deals on Dell's most popular laptops - Starting at $479

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RE: [arrl-odv:17649] Re: Defintion of Amateur Equipment
by John Bellows 16 Apr '09

16 Apr '09

Marty: An interesting and valid observation on illegal operation but not the point of my question to Chris regarding the potential for changes in the ARS equipment certification exemption Rules or his answer as I understood it. The whole point of converting these amateur radios was to permit CB or freeband operation. If those folks wanted to operate in the amateur bands they would either leave the equipment as manufactured or buy amateur gear. They generally want to play in that pond. Our concern as you note arises when they spill over into our allocations. The question of enforcement of the rules against illegal operation in our service is already within the charge to Rileys successor Laura Smith. We must continue to encourage vigorous enforcement and provide information on violations but implementation is ultimately up to FCC. On the other hand the exemption from equipment certification and free modification of equipment used in the ARS has always been central to the experimental aspect of our Service. Ignoring a potential challenge to the certification exemption or putting that concern on the back-burner is not in our best interest and certainly wont make it go away. 73, Jay, KØQB -----Original Message----- From: Marty Woll [mailto:n6vi@socal.rr.com] Sent: Thursday, April 16, 2009 12:48 PM To: arrl-odv Cc: dhenderson(a)arrl.org Subject: [arrl-odv:17649] Re: Defintion of Amateur Equipment It seems to me that our greater concern should be whether these radios are operated in our Amateur bands by unlicensed individuals. What they do in the CB allocation is not really our problem as long as it's confined to that segment of the spectrum. There are plenty of other CB enforcement opportunities not fully pursued, from ads for CB amplifiers to rampant high-power operations. Our own service is probably better off if the issue of conversion potential remains on the FCC's back burner. 73, Marty N6VI ----- Original Message ----- From: Chris Imlay <mailto:w3kd@aol.com> To: arrl-odv <mailto:arrl-odv@reflector.arrl.org> Cc: dhenderson(a)arrl.org Sent: Thursday, April 16, 2009 9:41 AM Subject: [arrl-odv:17647] Re: Defintion of Amateur Equipment Well, of course that is the real fear, Jay; if their "ease of modification" test, and their "capacity equals intent" enforcement policy become too problematic (and we might already be there), the next step for FCC might well be equipment authorization for Amateur equipment. Another FCC alternative is to forego any freeband or CB radio enforcement, another direction we don't want to go. Equipment authorization requires lab testing, which is expensive, and delay, which is also expensive for bona fide Amateur equipment manufacturers. And it really has no place in what is after all an experimental radio service. So we have historically, of course, always opposed that direction. We managed to clear that hurdle for software defined radios, which presents a very complex enforcement picture. So, I don't know what the fallout from this case might be, but we had best keep in touch with OET about it. Incidentally, OET still has pending our request for clarification of the equipment authorization requirements for ancillary Amateur station equipment with microprocessors that would otherwise require Part 15 equipment authorization. We haven't pushed that because our filing it forestalled some incipient enforcement against very small manufacturers of Amateur accessories, who advertise in QST, and who, but for ARRL's intervention, otherwise simply would be driven out of the marketplace.

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[arrl-odv:17649] Re: Defintion of Amateur Equipment
by Marty Woll 16 Apr '09

16 Apr '09

It seems to me that our greater concern should be whether these radios are operated in our Amateur bands by unlicensed individuals. What they do in the CB allocation is not really our problem as long as it's confined to that segment of the spectrum. There are plenty of other CB enforcement opportunities not fully pursued, from ads for CB amplifiers to rampant high-power operations. Our own service is probably better off if the issue of conversion potential remains on the FCC's back burner. 73, Marty N6VI ----- Original Message ----- From: Chris Imlay To: arrl-odv Cc: dhenderson(a)arrl.org Sent: Thursday, April 16, 2009 9:41 AM Subject: [arrl-odv:17647] Re: Defintion of Amateur Equipment Well, of course that is the real fear, Jay; if their "ease of modification" test, and their "capacity equals intent" enforcement policy become too problematic (and we might already be there), the next step for FCC might well be equipment authorization for Amateur equipment. Another FCC alternative is to forego any freeband or CB radio enforcement, another direction we don't want to go. Equipment authorization requires lab testing, which is expensive, and delay, which is also expensive for bona fide Amateur equipment manufacturers. And it really has no place in what is after all an experimental radio service. So we have historically, of course, always opposed that direction. We managed to clear that hurdle for software defined radios, which presents a very complex enforcement picture. So, I don't know what the fallout from this case might be, but we had best keep in touch with OET about it. Incidentally, OET still has pending our request for clarification of the equipment authorization requirements for ancillary Amateur station equipment with microprocessors that would otherwise require Part 15 equipment authorization. We haven't pushed that because our filing it forestalled some incipient enforcement against very small manufacturers of Amateur accessories, who advertise in QST, and who, but for ARRL's intervention, otherwise simply would be driven out of the marketplace.

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[arrl-odv:17652] Re:RE: RE: Defintion of Amateur Equipment
by Sumner, Dave, K1ZZ 16 Apr '09

16 Apr '09

Marty, as I'm sure you know there's a ton of such activity. It's why you have to avoid most frequencies ending in "5" when operating 10 meter CW. Dave From: Marty Woll [mailto:n6vi@socal.rr.com] Sent: Thursday, April 16, 2009 2:05 PM To: arrl-odv Cc: Henderson, Dan N1ND Subject: [arrl-odv:17650] Re: RE: Defintion of Amateur Equipment Notice that it's 'phone only starting at 28.015, a non-authorized mode at that frequency. Perhaps some IW monitoring of the lower off-the-shelf channels would help identify those that didn't bother to (or couldn't) do the conversion. 73, Marty N6VI ----- Original Message ----- From: Sumner, Dave, K1ZZ <mailto:dsumner@arrl.org> To: arrl-odv <mailto:arrl-odv@reflector.arrl.org> Cc: Henderson, Dan N1ND <mailto:dhenderson@arrl.org> Sent: Thursday, April 16, 2009 9:32 AM Subject: [arrl-odv:17646] RE: [arrl-odv:17644] Defintion of Amateur Equipment It's astonishing to me that the FCC could blow this case. If you google on "Connex CX 3300HP" it's patently obvious that this is a CB rig.

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[arrl-odv:17651] Re:RE: RE: Defintion of Amateur Equipment
by Sumner, Dave, K1ZZ 16 Apr '09

16 Apr '09

Chris, I would contend that if a “10-meter” radio only indicates channel numbers and not frequencies, covers “bands” of channels that happen to conform to the unique channelization scheme used on CB (where, for example, channels 24 and 25 are between channels 22 and 23) and can be field-modified to operate on the 40 CB channels, it’s disingenuous to believe that it was not designed with that in mind. Furthermore, there is no legitimate market for such a “10 meter” radio. I would be happy to so testify on behalf of the FCC and in fact was ready to do so in a Michigan case a number of years ago – but the U.S. Attorney’s office blew THAT case, too. Ironically, the easier it is to modify these radios the better off we are. The last thing we want is for them to be used on 10 meters! Dave From: Chris Imlay [mailto:w3kd@aol.com] Sent: Thursday, April 16, 2009 12:49 PM To: arrl-odv Cc: Henderson, Dan N1ND Subject: [arrl-odv:17648] Re: RE: Defintion of Amateur Equipment I haven't done that, Dave, but it would be interesting to know whether the device, out of the box, operates on Amateur bands exclusively. Frankly, I think that is where the line should be drawn; if the device operates out of the box exclusively on Amateur frequencies. Trying to rely on "mods" and how easy or hard it is to implement one seems a tough test to administer. There were apparently manufacturer changes to the radio at some time after it was initially marketed, according to the decision. Chris Christopher D. Imlay Booth, Freret, Imlay & Tepper, P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD(a)ARRL.ORG -----Original Message----- From: Sumner, Dave, K1ZZ <dsumner(a)arrl.org> To: arrl-odv <arrl-odv(a)reflector.arrl.org> Cc: Henderson, Dan N1ND <dhenderson(a)arrl.org> Sent: Thu, 16 Apr 2009 12:32 pm Subject: [arrl-odv:17646] RE: [arrl-odv:17644] Defintion of Amateur Equipment It’s astonishing to me that the FCC could blow this case. If you google on “Connex CX 3300HP” it’s patently obvious that this is a CB rig. Dave < SPAN style="FONT-SIZE: 11pt; COLOR: #1f497d; FONT-FAMILY: 'Calibri','sans-serif'"> From: John Bellows [mailto:jbellows@skypoint.com <mailto:jbellows@skypoint.com?> ] Sent: Thursday, April 16, 2009 11:36 AM To: arrl-odv Cc: Henderson, Dan N1ND Subject: RE: [arrl-odv:17644] Defintion of Amateur Equipment Chris: Thanks for forwarding this interesting decision. FCC, at least in this proceeding, didn’t want to address what constitutes “easy modification”. Given the unwillingness of FCC to address those admittedly difficult factual issues and the challenge of developing a more workable definition of “easily modified” I wonder if you think the modification of equipment ostensibly intended for use in the ARS for use in CB or adjacent frequencies is of suffic ient concern to FCC that they may consider modification of ARS non-certification rules? 73, Jay, KØQB -----Original Message----- From: Chris Imlay [mailto:w3kd@aol.com <mailto:w3kd@aol.com?> ] Sent: Thursday, April 16, 2009 9:05 AM To: arrl-odv Cc: dhenderson(a)arrl.org <mailto:dhenderson@arrl.org> Subject: [arrl-odv:17644] Defintion of Amateur Equipment Attached, FYI, is what I consider an absolutely fascinating decision by a United States District Court for the Middle District of Florida in Orlando. It is an attempt by FCC to coll ect a $7,000 monetary forfeiture against one Ben Metzger (no relation to Ed, surely!) for offering for sale a non-certificated CB transceiver. The issue in the case is the collectabililty of the forfeiture, and the defense by the Defendant Metzger that the transceiver in question, a Ranger transceiver marketed under the name "Connex CX 3300HP" is not in fact a CB transceiver but an Amateur transceiver (which requires no FCC certification). The decision turns on the extent to which the transceiver (which out of the box indisputably transmits only on Amateur frequencies) is "easily modifiable" to operate out of band. This case deals with a number of issues that the FCC has clearly struggled with for many years now, I believe extremely unsuccessfully. In the end, I think the debate rages over the old philosophical conundrum about how many parts on a bicycle need be changed before it becomes a "different" bicycle. In other words, I think the test that the FCC has created (which is met by the Court in a footnote with a raised eyebrow -- see footnote 7), that the "capability" of a device to operate out of band constitutes the intent of the marketer or seller of the device to market uncertificated devices is untenable. But that issue wasn't properly before the Court. FCC said that it could not offer evidence that the radio was "easily modifiable" to operate out of band, which was an odd position for it to take, because that was found by the Court (I think properly) to be=2 0the FCC's burden, and because the FCC failed to meet that burden, summary judgment was granted to Metzger. Perhaps FCC didn't want to go there because it knew that it was a deep mire that it was attempting to wade through; as Metzger pointed out, virtually all HF radios are capable of being modified to operate on other than ARS frequencies. The only question is what the mechanism need be for doing so. FCC argued that it could rely on its own publication much earlier of a list of radios that could easily be modified to operate on other than Amateur frequencies, and any challenge to that would have had to be made in the Court of Appeals, but that is a bootstrap argument that really is pretty weak; forfeiture collection is based on the facts of each case and there is little! d! oubt that the government has the burden of proof in such cases. One reason why this is such an interesting case is that it involves a radio that actually does require modification before it can operate on non-Amateur frequency allocations. Prior cases seem easier to me; they involved radios which operate primarily on non-amateur frequencies, and/or used emissions that are not typically used in the portions of the Amateur allocations in which they did operate out of the box. In this case, there was evidence from an engineer of the manufacturer that the device in fact was modified by the manufacturer because earlier versios of it were easy to modify to operate out of band, so they made it somewhat hard er to do so. Though the Court never decided the issue, because it found it possible to grant Summary Judgment to the Defendant Metzger (FCC having bailed on offering any evidence on the pivotal issue of "easily modifiable", there was going to be an attempt by Metzger, had the case gone further, to distinguish between radios that have switches that are user-accessible that enable or disable out-of- amateur- band operation and those which, like the Ranger radio here, require taking off the cover and soldering or unsoldering a component. The Court dangled the possibility that one test could be the time it took to do the mod, but you get the picture of an FCC test that is difficult to administer. Perhaps this case was bungled by FCC, but it strikes me that the decision will make it even more difficult in the future for FCC to police "freeband" radios than it has been, and it has been pretty hard already. 73, Chris W3KD Christopher D. Imlay Booth, Freret, Imlay & Tepper, P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD(a)ARRL.ORG <mailto:W3KD@ARRL.ORG> ________________________________ Great deals on Dell's most popular laptops - Starting at $479 <http://pr.atwola.com/promoclk/100126575x1220029082x1201385915/aol?redir=htt…> ________________________________ Great deals on Dell's most popular laptops - Starting at $479 <http://pr.atwola.com/promoclk/100126575x1220029082x1201385915/aol?redir=htt…>

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[arrl-odv:17650] Re: RE: Defintion of Amateur Equipment
by Marty Woll 16 Apr '09

16 Apr '09

Notice that it's 'phone only starting at 28.015, a non-authorized mode at that frequency. Perhaps some IW monitoring of the lower off-the-shelf channels would help identify those that didn't bother to (or couldn't) do the conversion. 73, Marty N6VI ----- Original Message ----- From: Sumner, Dave, K1ZZ To: arrl-odv Cc: Henderson, Dan N1ND Sent: Thursday, April 16, 2009 9:32 AM Subject: [arrl-odv:17646] RE: [arrl-odv:17644] Defintion of Amateur Equipment It's astonishing to me that the FCC could blow this case. If you google on "Connex CX 3300HP" it's patently obvious that this is a CB rig.

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[arrl-odv:17648] Re: RE: Defintion of Amateur Equipment
by Chris Imlay 16 Apr '09

16 Apr '09

I haven't done that, Dave, but it would be interesting to know whether the device, out of the box, operates on Amateur bands exclusively. Frankly, I think that is where the line should be drawn; if the device operates out of the box exclusively on Amateur frequencies. Trying to rely on "mods" and how easy or hard it is to implement one seems a tough test to administer. There were apparently manufacturer changes to the radio at some time after it was initially marketed, according to the decision. Chris Christopher D. Imlay Booth, Freret, Imlay & Tepper, P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD(a)ARRL.ORG -----Original Message----- From: Sumner, Dave, K1ZZ <dsumner(a)arrl.org> To: arrl-odv <arrl-odv(a)reflector.arrl.org> Cc: Henderson, Dan N1ND <dhenderson(a)arrl.org> Sent: Thu, 16 Apr 2009 12:32 pm Subject: [arrl-odv:17646] RE: [arrl-odv:17644] Defintion of Amateur Equipment It’s astonishing to me that the FCC could blow this case. If you google on “Connex CX 3300HP” it’s patently obvious that this is a CB rig. Dave From: John Bellows [mailto:jbellows@skypoint.com] Sent: Thursday, April 16, 2009 11:36 AM To: arrl-odv Cc: Henderson, Dan N1ND Subject: RE: [arrl-odv:17644] Defintion of Amateur Equipment Chris: Thanks for forwarding this interesting decision. FCC, at least in this proceeding, didn’t want to address what constitutes “easy modification”. Given the20unwillingness of FCC to address those admittedly difficult factual issues and the challenge of developing a more workable definition of “easily modified” I wonder if you think the modification of equipment ostensibly intended for use in the ARS for use in CB or adjacent frequencies is of sufficient concern to FCC that they may consider modification of ARS non-certification rules? 73, Jay, KØQB -----Original Message----- From: Chris Imlay [mailto:w3kd@aol.com] Sent: Thursday, April 16, 2009 9:05 AM To: arrl-odv Cc: dhenderson(a)arrl.org Subject: [arrl-odv:17644] Defintion of Amateur Equipment Attached, FYI, is what I consider an absolutely fascinating decision by a United States District Court for the Middle District of Florida in Orlando. It is an attempt by FCC to collect a $7,000 monetary forfeiture against one Ben Metzger (no relation to Ed, surely!) for offering for sale a non-certificated CB transceiver. The issue in the case is the collectabililty of the forfeiture, and the defense by the Defendant Metzger that the transceiver in question, a Ranger transceiver marketed under the name "Connex CX 3300HP" is not in fact a CB transceiver but an Amateur transceiver (which requires no FCC certification). The decision turns on the extent to which the transceiver (which out of the box indisputably transmits only on Amateur frequencies) is "easily modifiable" to operate out of band. This case deals with a number of issues that the FCC has clearl y struggled with for many years now, I believe extremely unsuccessfully. In the end, I think the debate rages over the old philosophical conundrum about how many parts on a bicycle need be changed before it becomes a "different" bicycle. In other words, I think the test that the FCC has created (which is met by the Court in a footnote with a raised eyebrow -- see footnote 7), that the "capability" of a device to operate out of band constitutes the intent of the marketer or seller of the device to market uncertificated devices is untenable. But that issue wasn't properly before the Court. FCC said that it could not offer evidence that the radio was "easily modifiable" to operate out of band, which was an odd position for it to take, because that was found by the Court (I think properly) to be the FCC's burden, and because the FCC failed to meet that burden, summary judgment was granted to Metzger. Perhaps FCC didn't want to go there because it knew that it was a deep mire that it was attempting to wade through; as Metzger pointed out, virtually all HF radios are capable of being modified to operate on other than ARS frequencies. The only question is what the mechanism need be for doing so. FCC argued that it could rely on its own publication much earlier of a list of radios that could easily be modified to operate on other than Amateur frequencies, and any challenge to that would have had to be made in the Court of Appeals, but that is a bootstrap argument that really is pr etty weak; forfeiture collection is based on the facts of each case and there is little! d! oubt that the government has the burden of proof in such cases. One reason why this is such an interesting case is that it involves a radio that actually does require modification before it can operate on non-Amateur frequency allocations. Prior cases seem easier to me; they involved radios which operate primarily on non-amateur frequencies, and/or used emissions that are not typically used in the portions of the Amateur allocations in which they did operate out of the box. In this case, there was evidence from an engineer of the manufacturer that the device in fact was modified by the manufacturer because earlier versios of it were easy to modify to operate out of band, so they made it somewhat harder to do so. Though the Court never decided the issue, because it found it possible to grant Summary Judgment to the Defendant Metzger (FCC having bailed on offering any evidence on the pivotal issue of "easily modifiable", there was going to be an attempt by Metzger, had the case gone further, to distinguish between radios that have switches that are user-accessible that enable or disable out-of- amateur- band operation and those which, like the Ranger radio here, require taking off the cover and soldering or unsoldering a component. The Court dangled the possibility that one test could be the time it took to do the mod, but you get the picture of an FCC test that is difficult to administer.0A Perhaps this case was bungled by FCC, but it strikes me that the decision will make it even more difficult in the future for FCC to police "freeband" radios than it has been, and it has been pretty hard already. 73, Chris W3KD Christopher D. Imlay Booth, Freret, Imlay & Tepper, P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD(a)ARRL.ORG Great deals on Dell's most popular laptops - Starting at $479

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RE: [arrl-odv:17644] Defintion of Amateur Equipment
by John Bellows 16 Apr '09

16 Apr '09

Chris: Thanks for forwarding this interesting decision. FCC, at least in this proceeding, didnt want to address what constitutes easy modification. Given the unwillingness of FCC to address those admittedly difficult factual issues and the challenge of developing a more workable definition of easily modified I wonder if you think the modification of equipment ostensibly intended for use in the ARS for use in CB or adjacent frequencies is of sufficient concern to FCC that they may consider modification of ARS non-certification rules? 73, Jay, KØQB -----Original Message----- From: Chris Imlay [mailto:w3kd@aol.com] Sent: Thursday, April 16, 2009 9:05 AM To: arrl-odv Cc: dhenderson(a)arrl.org Subject: [arrl-odv:17644] Defintion of Amateur Equipment Attached, FYI, is what I consider an absolutely fascinating decision by a United States District Court for the Middle District of Florida in Orlando. It is an attempt by FCC to collect a $7,000 monetary forfeiture against one Ben Metzger (no relation to Ed, surely!) for offering for sale a non-certificated CB transceiver. The issue in the case is the collectabililty of the forfeiture, and the defense by the Defendant Metzger that the transceiver in question, a Ranger transceiver marketed under the name "Connex CX 3300HP" is not in fact a CB transceiver but an Amateur transceiver (which requires no FCC certification). The decision turns on the extent to which the transceiver (which out of the box indisputably transmits only on Amateur frequencies) is "easily modifiable" to operate out of band. This case deals with a number of issues that the FCC has clearly struggled with for many years now, I believe extremely unsuccessfully. In the end, I think the debate rages over the old philosophical conundrum about how many parts on a bicycle need be changed before it becomes a "different" bicycle. In other words, I think the test that the FCC has created (which is met by the Court in a footnote with a raised eyebrow -- see footnote 7), that the "capability" of a device to operate out of band constitutes the intent of the marketer or seller of the device to market uncertificated devices is untenable. But that issue wasn't properly before the Court. FCC said that it could not offer evidence that the radio was "easily modifiable" to operate out of band, which was an odd position for it to take, because that was found by the Court (I think properly) to be the FCC's burden, and because the FCC failed to meet that burden, summary judgment was granted to Metzger. Perhaps FCC didn't want to go there because it knew that it was a deep mire that it was attempting to wade through; as Metzger pointed out, virtually all HF radios are capable of being modified to operate on other than ARS frequencies. The only question is what the mechanism need be for doing so. FCC argued that it could rely on its own publication much earlier of a list of radios that could easily be modified to operate on other than Amateur frequencies, and any challenge to that would have had to be made in the Court of Appeals, but that is a bootstrap argument that really is pretty weak; forfeiture collection is based on the facts of each case and there is little! d! oubt that the government has the burden of proof in such cases. One reason why this is such an interesting case is that it involves a radio that actually does require modification before it can operate on non-Amateur frequency allocations. Prior cases seem easier to me; they involved radios which operate primarily on non-amateur frequencies, and/or used emissions that are not typically used in the portions of the Amateur allocations in which they did operate out of the box. In this case, there was evidence from an engineer of the manufacturer that the device in fact was modified by the manufacturer because earlier versios of it were easy to modify to operate out of band, so they made it somewhat harder to do so. Though the Court never decided the issue, because it found it possible to grant Summary Judgment to the Defendant Metzger (FCC having bailed on offering any evidence on the pivotal issue of "easily modifiable", there was going to be an attempt by Metzger, had the case gone further, to distinguish between radios that have switches that are user-accessible that enable or disable out-of- amateur- band operation and those which, like the Ranger radio here, require taking off the cover and soldering or unsoldering a component. The Court dangled the possibility that one test could be the time it took to do the mod, but you get the picture of an FCC test that is difficult to administer. Perhaps this case was bungled by FCC, but it strikes me that the decision will make it even more difficult in the future for FCC to police "freeband" radios than it has been, and it has been pretty hard already. 73, Chris W3KD Christopher D. Imlay Booth, Freret, Imlay & Tepper, P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD(a)ARRL.ORG _____ Great <http://pr.atwola.com/promoclk/100126575x1220029082x1201385915/aol?redir =http:%2F%2Fad.doubleclick.net%2Fclk%3B213969145%3B35701480%3Bh> deals on Dell's most popular laptops - Starting at $479

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