Dave:
Excellent points if presented in court but
of little value when the FCC attorneys take the peculiar position that “…the
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 bot
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, 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@ARRL.ORG
-----Original Message-----
From: Sumner, Dave, K1ZZ <dsumner@arrl.org>
To: arrl-odv <arrl-odv@reflector.arrl.org>
Cc: Henderson, Dan N1ND <dhenderson@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]
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]
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 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@ARRL.ORG