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 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 _____ 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
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. Christopher D. Imlay Booth, Freret, Imlay & Tepper, P.C. 14356 Cape May Road Silver Spring, Maryland 20904-601 1 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG -----Original Message----- From: John Bellows <jbellows@skypoint.com> To: 'Chris Imlay' <w3kd@aol.com>; 'arrl-odv' <arrl-odv@reflector.arrl.org> Cc: dhenderson@arrl.org Sent: Thu, 16 Apr 2009 11:36 am 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 forf eiture, 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=2 0wade 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 modi fiable", 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 Great deals on Dell's most popular laptops - Starting at $479
participants (2)
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Chris Imlay -
John Bellows