Before the
               Federal Communications Commission
                     Washington, DC  20554




                      PR Docket No. 91-36


  In the Matter of             )
                               )
  Inquiry into the Need        )
  to Preempt State and         )
  Local Laws Concerning        )
  Amateur Operator Use of      )
  Transceivers Capable of      )
  Reception Beyond the         )
  Amateur Service              )
  Frequency Allocations        )


                       NOTICE OF INQUIRY

Adopted:  February 13, 1991;         Released:  February 28, 1991

  By the Commission:

  1. On November 14, 1989, the American Radio Relay League, Incorporated (ARRL) filed a Request for Issuance of Declaratory Ruling¹ requesting that the Commission preempt certain state statutes and local ordinances affecting transceivers² used by Amateur Radio Service licensees. Some of these laws are so broad as to prohibit mere ownership of such transceivers if they are capable of reception of communications on certain frequencies other than amateur service frequencies. On March 15, 1990, we released a public notice³ inviting comment on ARRL's request. Although comments were received supporting ARRL's position, no comments were received addressing certain technical issues that are before us in this matter. Furthermore, the majority of comments addressed a broader preemption than was discussed in our public notice. We initiate this present inquiry to assist us further in considering ARRL's request.

  A. State and Local Laws

  2. The ARRL request discussed eleven state statutes and one local ordinance. These laws are commonly known as "scanner laws" the violation of which is typically a criminal misdemeanor, with equipment confiscation a possibility⁴. The New Jersey statute is representative of these laws:

  Any person who installs or has in any automobile, a  short-wave
  radio receiver operative on frequencies assigned by the Federal
  Communications Commission for fire, police, municipal, or other
  governmental uses, is guilty of a misdemeanor, unless a  permit
  therefor has first been obtained from the chief of  the  county
  police, or from the chief of the police  of  the  municipality,
  wherein such person resides.

  This section does not apply  to  any  fire,  police,  or  other
  governmental official  of  the  State,  or  of  any  county  or
  municipality thereof5.

This statute regulates the mere acts of installing or posessing in a vehicle certain receivers, and it includes a permit requirement for those who are not governmental officials. Also, although the New Jersey statute prohibits the capability to receive "fire, police, municipal or other governmental" channels, our review of the subject laws cited by the ARRL indicates that most of the statutes at issue are more narrowly drawn to prohibit the capability to receive police channels.

  3. Most of these laws are directed primarily toward frequency reception capability by equipment located in vehicles, but at least one law reaches possession of this equipment merely outside the home⁶. Some laws, however, specifically exempt amateur operators who posess equipment in motor vehicles⁷. These state and local laws appear to be aimed at promoting the health, safety, and general welfare of the citizenry⁸.

  B. The ARRL Declaratory Ruling Request

  4. ARRL makes two arguments in support of preemption. First, it states that the receiver sections of the majority of commercially available amateur station transceivers can be tuned slightly past the edges of the amateur service bands to facilitate adequate reception up to the end of the amateur service bands. ARRL seeks a preemption ruling that would permit amateur operators to install in vehicles transceivers that are capable of this "incidental" reception⁹. Although ARRL's formal request is couched in terms of this first, technical point, the request focuses almost entirely on a second, broader issue of whether state and local authorities should be permitted, via the scanner laws, to prohibit the capability of radio reception by amateur operators on public safety and special emergency frequencies that are well outside the amateur service bands.

  5. In regard to the broader issue, ARRL argues that amateur operators have special needs for broadscale "out-of-band" reception, and that the marketplace has long recognized these needs by offering accommodating transceivers. According to ARRL¹⁰, many commercially manufactured amateur service HF transceivers and the majority of such VHF and UHF transceivers have non-amateur service frequency reception capability well beyond the "incidental" -- they can receive across a broad spectrum of frequencies, including the police and other public safety and special emergency frequencies here at issue. This additional capability, argues ARRL, permits amateur operators to take part in a variety of safety activities, some in conjunction with the National Weather Service, that are legitimately available to amateur operators. Such activities benefit the public, especially in times of crisis, and some require the mobile use of the amateur stations¹¹. ARRL states that the "vast majority" of amateur operators take part in these mobile activities, and that the widespread enforcement of laws such as New Jersey's would make illegal the possession of "essentially all" modern amateur mobile equipment¹². (As of January 31, 1991, the Commission's licensing database indicates that there are 502,133 amateur station licensees in the United States and its territories and posessions.) ARRL states that, as a result of scanner laws, "several dozen instances of radio seizure and criminal arrest [have been] suffered by licensed amateurs in recent months."¹³

  C. Comments

  6. In response to our public notice on this matter, we received 45 comments, including on from ARRL, and no reply comments. All support ARRL's broader request and almost all appear to be from amateur operators. Twenty-four comments are from individuals who are aware of one or more of the subject laws and express support for ARRL's position in very general terms. Of the twenty-one remaining comments, four are from individuals who had first-hand experience with such laws, where law enforcement warnings or confiscation have resulted from transceiver possession. Five are from individuals in law enforcement, either currently or formerly. Six are from the following associations and organizations: Association of North American Radio Clubs, Associated Public-Safety Communications Officers, Spectrum Resources, Uniden America Corporation, Personal Radio Steering Group (which requests that we extend this proceeding to cover General Mobile Radio Service licensees), and Utilities Telecommunications Council (which requests that we extend this proceeding to cover other mobile licensees that wish to receive fire and other public safety service transmissions). Although this inquiry is primarily focused on the Amateur Radio Service, we additionally take this opportunity to request comment on whether the scanner laws are affecting other licensed radio services.

  7. ARRL describes an incident in which a licensed amateur operator who resided in New York was driving his vehicle through New Jersey when the New Jersey police, acting under authority of the New Jersey statute, stopped him, arrested him, and confiscated his VHF amateur service transceiver. ARRL notes that the New York licensee, as a non-resident of New Jersey, would not be eligible to obtain the operator's permit required by the New Jersey statute for receiver operation within New Jersey¹⁴. Another commenter, a licensed amateur operator, states that although he is a New Jersey resident, his request for a permit under the New Jersey statute has been denied by the local issuing authority on the grounds that the authority issues the permits only to "emergency personnel."¹⁵ In three other comments, amateur operators state that while traveling in vehicles in Illinois, Ohio, New Jersey, and Texas, they have been stopped by state or local police and threatened with the possibility of confiscation of their mobile amateur service transceivers¹⁶.

  8. A few commenters state that they have found vital their volunteer safety work the use of certain out-of-band channels used in governmentally sponsored activities such as the Civil Air Patrol's search and rescue undertakings. Another commenter explains how use of his out-of-band receiver allowed him to listen to the National Weather Service on VHF maritime channels for critical information during a flood. These commenters emphasize that there is a public service value in having their transceivers be capable of receiving these channels, which are not amateur, public safety, or special emergency services frequencies. ¹⁷

  9. As noted above, Associated Public-Safety Communications Officers, Inc. (APCO) filed a comment in support of the ARRL Request. APCO is this nation's oldest and largest public safety communications organization representing the public safety radio community. APCO states:

  Every radio amateur is not the  law-abiding  citizen  we  would
  prefer them to be.  However, it is patently unfair to  penalize
  the entire community for the actions of the  few  who  utilized
  their equipment to circumvent the law.  Amateur radio operators
  have,  historically,  been  vital  assets  to   public   safety
  community.  They have assisted government  and  the  public  in
  virtually every  disaster  that  has  occurred  throughout  the
  world.

  There are other methods of protecting communications  available
  to public safety, such as encryption, which is easy to  procure
  and much less invasive of the citizen's right (or privilege) to
  listen to what is  being  transmitted  over  the  radio.   APCO
  believes that, in this modern age, it is the responsibility  of
  an  agency  to  protect  its  own  confidential  communications
  through the  use  of  technology,  not  by  arresting  innocent
  citizens18.

  10. We believe additional information would assist us to make a decision in this matter¹⁹. For example, it would be helpful to have more information on the current (and future) marketplace availability of mobile equipment meeting the restriction of the subject laws, and on the technical and financial feasibility of modifying existing equipment to meet the laws. We especially encourage the manufacturing community, which is best suited to comment on the current state of amateur radio technology, to provide this technical information. We also desire comment from the states and municipalities that have enacted the subject laws. Specifically, we solicit comment on the following questions:

  (1)  Is there VHF or UHF mobile (or portable) amateur equipment
  now being manufactured that complies with the state  and  local
  laws in question?  If so, give the purchase costs and the  make
  and model numbers.

  (2)  What percentage of existing  VHF  or  UHF  mobile  amateur
  equipment has  a  reception  capability  (a)  only  on  amateur
  service bands, (b) on amateur  bands  plus  a  capability  just
  beyond the amateur bands (within 25 kHz of the band edge),  and
  (c) on the amateur bands plus a capability on (at least) any of
  the public safety or special emergency services channels?  What
  are the above percentages when calculated only in  the  context
  of equipment that is currently being manufactured  (as  opposed
  to equipment that no longer is manufactured or is built  by  an
  amateur)?  What are the purchase costs for such equipment?

  (3)  What percentage of  amateur  operators  purchase  and  use
  manufactured mobile equipment?

  (4)  What is necessary technically for manufacturers to produce
  equipment that  complies  with  the  laws,  and  what  are  the
  associated costs?

  (5)  What is required technically to modify  amateur  equipment
  that is capable of receiving on police radio  service  channels
  or other public safety or special emergency  services  channels
  to eliminate such reception capability, and what  is  the  cost
  associated with such a modification?   Does  the  intercategory
  sharing permitted in the private land mobile services20 and
  the diversity of frequency restrictions throughout the  country
  affect  the   technical   requirements   or   costs   of   such
  modifications?

  (6)  What specific instances have occurred where the state  and
  local laws in question have adversely  affected  amateur  radio
  operation?

  (7)  Is there a public interest  in  having  amateur  equipment
  available that can receive  non-amateur  frequencies,  e.g.  an
  interest in providing a  pool  of  equipment  that  facilitates
  emergency  operations  in  states   where   local   authorities
  expressly desire the assistance of amateur licensees?

  (8)  Given  that  the  amateur  radio   equipment   market   is
  essentially world-wide, what would be the effect,  if  any,  on
  the availability and  price  of  amateur  equipment  if  United
  States requirements were made more restrictive  than  those  of
  the  rest  of  the  world?   Do  any   other   countries   have
  restrictions on amateur radio  transceiver  receipt  of  public
  safety transmissions?

  (9)  What effect do the scanner laws  have  on  the  interstate
  sale of amateur service equipment and the interstate  transport
  of equipment by amateur licensees?

  11. Accordingly, we adopt this Notice of Inquiry under the authority contained in Sections 4(i), 303(r), and 403 of the Communications Act of 1934, as ammended, 47 USC 154(i), 303(r), and 403. Pursuant to applicable procedures set forth in Sections 1.415, 1.419, and 1.430 of the Commission's Rules, 47 CFR 1.415, 1.417, & 1.430. Interested parties may file comments on or before June 7, 1991, and reply comments on or before July 8, 1991. Extensions of these time periods are not contemplated. We will consider all relevant and timely and timely comments before taking final action in this proceeding. In reaching its decision, the Commission may consider information and ideas not contained in the comments, provided that such information or a writing indicating the nature and source of such information is noted in any subsequent actions. As noted above in a footnote, comments filed pursuant to our previous public notice are deemed to be filed in response to this Notice of Inquiry as well, and therefore need not be refiled. We do not, however, discourage additional filings from the entities who filed previously.

  12. To file formally in this proceeding, participants must file an original and five copies of all comments, reply comments, and supporting comments. If participants want each Commissioner to receive a personal copy of their comments, an original plus nine copies must be filed. Persons who wish to participate informally may do so by submitting one copy. Comments and reply comments should be sent to the Office of the Secretary, Federal Communications Commission, 1919 M Street NW, Washington, DC 20554. Comments and reply comments will be available for public inspection during regular business hours in the Dockets Reference Room (room 239) of the Federal Communications Commission, 1919 M Street NW, Washington, DC 20554.

  FEDERAL COMMUNICATIONS COMMISSION



  Donna R. Searcy
  Secretary

----------

1 The American Radio League, Inc. Request for Declaratory Ruling Concerning the Posession of Radio Receivers Capable of Reception of Police or other Public Safety Communications (Nov. 13, 1989) (hereinafter "ARRL Request").

2 Radio equipment capable of both transmission and reception. We are concerned herein, however, only with reception capability. Transmission by amateur operators on unauthorized frequencies is prohibited.

3 Public Notice, 4 FCC Rcd 1981 (1990), 55 Fed. Reg. 10805 (Mar. 23, 1990). Comments were due by May 16, 1990, and reply comments by May 31, 1990.

4 Three of the laws, however, are "aiding and abetting"-type statutes, which would prohibit the use of any radio receiver in connection with criminal activity. See ARRL Request, supra note 1, at 10 n.7. Such statutes do not penalize a radio owner for mere possession of a radio receiver, but instead specify that, in the context of criminal activity, the unlawful act consists of reception and divulgence (or use) of the communcation. Such statutes are not addressed by this inquiry.

5 N.J. Stat. Ann. 2A 127--4 (West 1985) (cited in party only). See generally note ⁸ infra (discussing case upholding New Jersey statute, which dates from 1933).

6 See Ky. Rev. Stat. Ann. 432.570 (Michie/bobbs-Merrill 1985). Under Kentucky's statute, certain users are exempted, such as radio and television stations, sellers of the "scanner" radios, disaster and emergency personnel, and those using the weather radio service of the National Oceanic and Atmospheric Administration. Some such users need to obtain local governmental permits, others do not.

7 See e.g., Minn. Stat. Ann. 299C.37 (West Supp. 1990): N.Y. Veh. & Traf. Law 397 (McKinney 1986).

8 Such was noted by a New Jersey court in upholding, on other than preemptive grounds, the constitutionality of New Jersey's law.

  It seems reasonable to  assume  that  there  may  have  been  a
  determination by the Legislature that if persons in automobiles
  could without restriction listen to  fire,  police,  and  other
  governmental  communications  their  high  degree  of  mobility
  coupled with their possible  desire  to  proceed  to  locations
  referred to in such communications, for reasons of curiosity or
  otherwise, might well result  in  interference  with  essential
  government activities.   Likewise,  the  Legislature  may  have
  determined that if persons engaged in illegal  activities  were
  able to receive such information  in  their  automobiles,  they
  would become aware of their detection and their escape would be
  facilitated.

  State v. Smith, 130 N.J. Super.  442,  446-47,  327  A.2d  462,
  464-65 (1974).

9 ARRL Request, supra note 1, at 1, 3 n.2, 5 n.3, "Most commercial amateur radio VHF and UHF transceivers ... are incidentally capable of reception (but not transmission) on frequencies additional to those allocated to the Amateur Radio Service. These frequencies are adjacent to amateur allocations. This is true even though the equipment is primarily designed for amateur bands, and results from the intentional effort to insure proper operation of the transceiver throughout the entire amateur band in question." Id. at 3 n.2.

10 Id. at 12.

11 See generally House Comm. on the Judiciary, Electronic Communications Privacy Act of 1986, H.R. Rep. No. 647, 99th Cong., 2d Sess. 42.

12 ARRL Request, supra note 1, at 2, 12.

13 Id. at 11.

14 Comments of the American Radio Relay League, Incorporated at 2-3 (May 16, 1990).

15 Comment of Emory L. Brown, Jr. (Mar. 23, 1990).

16 Comment of L.W. Bradford (May 1, 1990); Comment of Rich Casey (May 9, 1990); Comment of Todd L. Sherman (April 21, 1990).

17 It should be noted that in the 30-50 MHz, 150-174 MHz, and 450-512 MHz bands the public safety and special emergency services channels are intermixed with frequencies allocated to non-public-safety services. Thus, eliminating the capability to receive the public safety channels would have to be done on a case-by-case, frequency-by-frequency basis. In these segments of the spectrum, there does not exist a contiguous range of requencies that constitute a "public safety band," with upper and lower frequency limits, that could more easily be excluded.

18 Comments of APCO at 2-3 (May 16, 1990).

19 Comments filed pursuant to our previous public notice are deemed to be filed in response to this Notice of Inquiry as well, and therefore need not be refiled. We do not, however, discourage additional filings from the entities who filed previously.

20 See 47 CFR 90.176. For example, a Police Radio Service licensee may be authorized to operate on frequencies allotted to the Highway Maintenance Radio Service, the Forestry-Conservation Radio Service, or any other public safety land mobile service.

Retranscribed by: Todd L. Sherman/KB4MHH
Page Created: December 28, 2002.
Last updated: December 28, 2002.

Mobile Scanner & RADAR-Detector Laws In The U.S.
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