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 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@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@ARRL.ORG