[KYHAM] Drive Safely!

[Ron Dodson]

A reminder to all hitting the road for the holidays;  KSP will be out in 
force with checkpoints and patrols starting Wednesday this week.  I also 
suggest that those taking amateur radio along carry a copy of your 
amateur radio license and the "scanner laws" for your own protection. 
KRS 432.570  http://www.kyham.net/docs/legal/scanner.pdf  as well as the 
federal pre-emptive order

PR Docket No. 91-36 below.  These protect amateur radio equipment capable of RECEIVING POLICE transmissions from seizure from a licensed amateur radio operator by police.  This DOES NOT cover rigs modified to also transmit in the police and public safety portions of the bands!  


As always, use good judgement in use of equipment to receive outside of 
our band limits.  Having the local PD turned up loud in a public place 
is a sure way to draw attention you don't want, etc.

Happy Thanksgiving all, drive safely!

73,
Ron, KA4MAP
SEC Ky

-----------------------------------------------

FCC 93-410

IN THE MATTER OF FEDERAL PREEMPTION OF STATE AND LOCAL LAWS CONCERNING
LOCAL LAWS CONCERNING AMATEUR OPERATOR USE OF TRANSCEIVERS CAPABLE OF
RECEPTION BEYOND AMATEUR SERVICE FREQUENCY ALLOCATIONS 

PR Docket No. 91-36

Adopted: August 20, 1993; Released: September 3, 1993 

MEMORANDUM OPINION AND ORDER

By the Commission: 

I. INTRODUCTION

1. On November 14, 1989, the American Radio Relay League, Incorporated
(ARRL), filed a Motion for a Declaratory Ruling [FN1] requesting that
the Commission preempt certain state statutes and local ordinances
affecting transceivers [FN2] used by Amateur Radio Service licensees.
The laws referenced by the ARRL prohibit the possession of such
transceivers if they are capable of the reception of communications on
certain frequencies other than amateur service frequencies. On March 15,
1990, we released a public notice [FN3] inviting comment on ARRL's
request. In addition, on February 28, 1991, we released a Notice of
Inquiry: [FN4] that solicited additional comment to assist us in making
a decision in this matter. This Memorandum Opinion and Order grants the
request to the extent indicated herein. 

II. BACKGROUND

2. The ARRL motion discusses state statutes and local ordinances
commonly known as "scanner laws," the violation of which may be a
criminal misdemeanor with the possibility of equipment confiscation.
[FN5] Specifically, ARRL notes that state statutes in New Jersey and
Kentucky (which have subsequently been changed--see paragraph 3, infra)
prohibit the possession of a mobile short-wave radio capable of
receiving frequencies assigned by the Commission for, inter alia, police
use. [FN6] In addition, ARRL states that local ordinances exist
throughout the United States that similarly prohibit the possession of
such mobile short-wave radios without a locally-issued permit. [FN7]
Therefore, ARRL explains, scanner laws can, inter alia, render amateur
radio licensees traveling interstate by automobile vulnerable to arrest
and to the seizure of their radio equipment by state or local police.
[FN8] 

3. Since the ARRL motion was filed with the Commission New Jersey
repealed its statute and substituted a new, narrowly tailored scanner
law that only applies in the criminal context. [FN9] In addition,
Kentucky amended its statute by adding an exemption applying to amateur
radio licensees. [FN10] As a result, there no longer appears to be any
state scanner law with a deleterious effect on the legitimate operations
of amateur radio service licensees. Nonetheless, the preemption issue
raised by the ARRL motion remains timely because it appears that some
local scanning ordinances remain in effect without safeguards to protect
the legitimate use of such radios by our licensees. [FN11]

III. MOTION, INQUIRY AND COMMENTS 

A. The ARRL Motion.

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
amateur service bands. ARRL seeks a preemption ruling that would permit
amateur operators to install in vehicles transceivers that are capable
of this "incidental" reception. [FN12] 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. Concerning 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 ARRL, [FN13] all 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 participate in a variety of safety
activities, some in conjunction with the military or the National
Weather Service. In both cases, reception on non-amateur frequencies is
necessary. Such activities benefit the public, according to ARRL,
especially in times of emergency, [FN14] and some require the mobile use
of the amateur stations. [FN15] ARRL states that, in addition, the vast
majority of amateur operators take part in these mobile activities, and
that the widespread enforcement of scanner laws would render illegal the
possession of virtually all modern amateur mobile equipment. [FN16] ARRL
states that, as a result of scanner laws, "several dozen instances of
radio seizure and criminal arrest [have been] suffered by licensed
amateurs." [FN17]

B. The Inquiry and Comments. 

6. The Commission's February 28, 1991 Inquiry solicited additional
information concerning the technical and financial feasibility of
modifying existing amateur service mobile transceivers to render them
incapable of receiving police or other public safety channels. We also
asked for information concerning the current and future marketplace
availability of mobile equipment meeting the restrictions of the laws
and whether there is value in having an available pool of wide-band,
mobile amateur equipment in the United States to meet emergency needs.

7. In response to the Inquiry, we received 115 comments and reply
comments, of which the great majority are from individual amateurs who
support preemption. [FN18] One commenter, the Michigan Department of
State Police, states that although it cooperates with the amateur
service during emergencies, it is concerned about isolated incidents of
apparently unlawful actions taken by amateur licensees upon receipt of
public safety communications outside of the amateur radio band. [FN19]
Therefore, it concludes that "there can be no beneficial need for
amateur radio equipment to tune in public safety channels." [FN20] Of
the remaining comments received, only a few address the technical and
marketplace questions described above. These comments are from
individual amateur operators [FN21] who state that existing wide-band
transceivers cannot be modified to meet the restrictions of the scanner
laws without substantial expense and that this situation will continue
as new equipment becomes available. Despite our specific request in the
Inquiry that manufacturers comment on these technical and financial
questions, no manufacturer chose to respond on these points. We also
received a few comments describing the prevalence of scanner laws
nationwide. [FN22] Finally, the National Communications System (NCS), of
the Department of Defense, states in its comment that the federal
government utilizes amateur operators in a number of programs requiring
mobile, wide-band transceivers. [FN23] 

IV. DISCUSSION

8. There are three ways state and local laws may be preempted. First,
Congress may expressly preempt the state or local law. Second, Congress
may, through legislation, clearly indicate its intent to occupy the
field of regulation, leaving "no room for the States to supplement."
[FN24] Last, and most important for this discussion, 

[e]ven where Congress has not completely displaced state regulation in a
specific area, state law [may be] nullified to the extent that it
actually conflicts with federal law. Such a conflict arises when
"compliance with both federal and state regulations is a physical
impossibility," ... or when state law "stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress." [FN25]

Furthermore, "[f]ederal regulations have no less preemptive effect than
federal statutes." [FN26] 

9. The amateur service is regulated extensively under Part 97 of the
Commission's Rules, 47 C.F.R. Part 97. As we have stated in the past:

[T]here is ... a strong federal interest in promoting amateur
communications. Evidence of this interest may be found in the
comprehensive set of rules that the Commission has adopted to regulate
the amateur service. Those rules set forth procedures for the licensing
of stations and operators, frequency allocations, technical standards
which amateur radio equipment must meet and operating practices which
amateur operators must follow. We recognize the Amateur Radio Service as
a voluntary, noncommercial communication service, particularly with
respect to providing emergency communications. Moreover, the Amateur
Radio Service provides a reservoir of trained operators, technicians and
electronic experts who can be called on in times of national or local
emergencies. By its nature, the Amateur Radio Service also provides the
opportunity for individual operators to further international goodwill.
[FN27] 

This federal interest in the amateur service is also reflected in
Section 97.1 of our rules, 47 C.F.R. s 97.1, which provides that the
amateur service exists to "continu[e] and exten[d] ... the amateur's
proven ability to contribute to the advancement of the radio art."
[FN28] This regulatory purpose is consistent with the Communications Act
requirement that "[i]t shall be the policy of the United States to
encourage the provision of new technologies to the public." [FN29]

10. The strong federal interest in the preservation and advancement of
the amateur service is also demonstrated by Congress's recent
recognition of the goals of the amateur service in a "Sense of Congress"
provision in which Congress strongly encouraged and supported the
amateur service. [FN30] Congress therein directed all Government
agencies to take into account the valuable contribution of amateurs when
considering actions affecting the amateur radio service. [FN31] We
believe that the strong federal interest in supporting the emergency
services provided by amateurs cannot be fully accomplished unless
amateur operators are free to own and operate their stations to the
fullest extent permitted by their licenses and are not unreasonably
hampered in their ability to transport their radio transmitting stations
across state and local boundaries for purposes of transmitting and
receiving on authorized frequencies. Indeed, as a result of advances in
technology making smaller, lighter weight radios commercially available,
the Commission has expressly amended its rules to facilitate and
encourage unrestricted mobile amateur operations. As we noted in a
recent rulemaking proceeding to modify the rules governing the amateur
radio service. 

[I]n the age of the microprocessor and the integrated circuit [amateur]
equipment is highly portable. It is common for amateur operators to
carry hand-held transceivers capable of accessing many local repeaters
in urban areas and also capable of reasonably good line-of-sight
communication. It appears that the concept of fixed station operation no
longer carries with it the same connotation it did previously. For this
Treason, we propose to delete current rules that relate to station
operation away from the authorized fixed station location. [FN32]

As a consequence of these changes, the rules now expressly authorize
amateur service operation "at points where the amateur service is
regulated by the FCC," that is, at fixed and mobile locations throughout
the United States. Furthermore, the Commission's Rules do not in any way
prohibit an amateur service transceiver from having out-of-band
reception capability. [FN33] 

11. Against this background, we conclude that certain state and local
laws, as described below, conflict with the Commission's regulatory
scheme designed to promote a strong amateur radio service. Scanner laws
that prohibit the use of transceivers that transmit and receive amateur
frequencies because they also receive public safety, special emergency
or other radio service frequencies frustrate most legitimate amateur
service mobile operations through the threat of penalties such as fines
and the confiscation of equipment. As noted by ARRL, virtually all
modern amateur service equipment in use today can receive transmissions
on the public safety and special emergency frequencies at issue, and the
majority of amateur stations [FN34] are operated in a mobile fashion.
Consequently, the mobile operations of the vast majority of amateurs are
affected by such laws. In addition, the record statements by amateurs
that the costs would be substantial to modify existing transceivers are
unchallenged. The scanner laws, then, essentially place the amateur
operator in the position of either foregoing mobile operations by simply
avoiding all use of the equipment in vehicles or other locations
specified in the laws, or risking fines, or equipment confiscation. This
very significant limitation on amateurs operating rights runs counter to
the express policies of both Congress and the Commission to encourage
and support amateur service operations, including mobile operations, and
impermissibly encroaches on federal authority over amateur operators.
[FN35] It conflicts directly with the federal interest in amateur
operators being able to transmit and receive on authorized amateur
service frequencies. [FN36]

12. For these reasons, we find it necessary to preempt state and local
laws that effectively preclude the possession in vehicles or elsewhere
of amateur service transceivers by amateur operators merely on the basis
that the transceivers are capable of reception on public safety, special
emergency, or other radio service frequencies, the reception of which is
not prohibited by federal law. [FN37] We find that, under current
conditions and given the types of equipment available in the market
today, such laws prevent amateur operators from using their mobile
stations to the full extent permitted under the Commission's Rules and
thus are in clear conflict with federal objectives of facilitating and
promoting the Amateur Radio Service. We recognize the state law
enforcement interest present here, and we do not suggest that state
regulation in this area that reasonably attempts to accommodate amateur
communications is preempted. [FN38] This decision does not pertain to
scanner laws narrowly tailored to the use of such radios, for example,
for criminal ends such as to assist flight from law enforcement
personnel. We will not, however, suggest the precise language that must
be contained in state and local laws. We do find that state and local
laws must not restrict the possession of amateur transceivers simply
because they are capable of reception of public safety, special
emergency or other radio service frequencies, the reception of which is
not prohibited by federal law, and that a state or local permit scheme
will not save from preemption an otherwise objectionable law. [FN39]
Finally, we note, as stated by APCO in comments filed previously in this
proceeding, that any public safety agency that desires to protect the
confidentiality of its communications can do so through the use of
technology such as scrambling or encryption. [FN40] 

V. CONCLUSION

13. We hold that state and local laws that preclude the possession in
vehicles or elsewhere of amateur radio service transceivers by amateur
operators merely on the basis that the transceivers are capable of the
reception of public safety, special emergency, or other radio service
frequencies, the reception of which is not prohibited by federal law,
are inconsistent with the federal objectives of facilitating and
promoting the amateur radio service and, more fundamentally, with the
federal interest in amateur operators' being able to transmit and
receive on authorized amateur service frequencies. We therefore hold
that such state and local laws are preempted by federal law. 

14. Accordingly, IT IS ORDERED that the request for a declaratory ruling
filed by the ARRL IS GRANTED to the extent indicated herein and in all
other respects IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION 

William F. Caton

Acting Secretary 

FN1. The American Radio Relay League, Inc., Request for Declaratory
Ruling Concerning the Possession of Radio Receivers Capable of Reception
of Police or Other Public Safety Communications (November 13, 1989)
(ARRL motion).

FN2. Transceivers are radio equipment capable of both transmission and
reception. 

FN3. Public Notice, 5 FCCRcd 1981 (1990), 55 Fed.Reg. 10805 (March 23,
1990). Comments were due by May 16, 1990, and reply comments by May 31,
1990.

FN4. 6 FCCRcd 1305 (1991) (Inquiry). 

FN5. The scanner laws appear to be aimed at promoting the health,
safety, and general welfare of the citizenry.

FN6. See generally ARRL motion (citing N.J.Stat.Ann. s 2A:127--4 (West
1985) (noting that a person is guilty of a misdemeanor for possessing or
installing a short-wave radio in an automobile capable of receiving,
inter alia, frequencies assigned for police use unless a permit has been
issued therefor by the chief of the county or municipal police wherein
such person resides) and Ky.Rev.Stat.Ann. s 432.570
(Michie/Bobbs-Merrill 1985) (noting that any person who possesses a
mobile shortwave radio capable of receiving frequencies assigned for
police use is guilty of a misdemeanor, except that certain users 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 are exempt, while
amateur radio licensees are not exempt). 

FN7. See generally ARRL motion (regarding, inter alia, a Kansas City,
Missouri, scanner law). See also note 24, infra.

FN8. Id. 

FN9. N.J.Stat.Ann. s 2C:33-22 (West 1992).

FN10. Ky.Rev.Stat.Ann. s 432.570(4)(c) (Baldwin 1992). 

FN11. See note 22, infra.

FN12. ARRL Motion at 1, 3 and 5. "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. 

FN13. Id. at 12.

FN14. For example, amateur radio licensees were widely recognized as
serving a vital role in providing communications from devastated areas
of South Florida during Hurricane Andrew and its aftermath in 1992. 

FN15. See generally House Comm. on the Judiciary, Electronic
Communications Privacy Act of 1986, H.R.Rep. No. 647, 99th Cong., 2d
Sess. 42.

FN16. ARRL motion at 2 and 12. As of February 28, 1993, the Commission's
licensing database indicates that there are 598,656 amateur stations in
the United States and its territories and possessions. 

FN17. Id. at 11.

FN18. A list of commenters is provided in the Appendix. Further, we have
accepted a comment from Communications Electronics, Inc., which was
filed one day late. See generally 47 C.F.R. s 1.46(b). We also have
considered 45 comments filed previously in this proceeding. See Inquiry,
6 FCCRcd at 1306- 1308 (noting that all of the filed comments support
the ARRL motion). In addition, we received comments from scanner
(receive-only equipment) users, who are not federal licensees and whose
interests have not been at issue in this proceeding. 

FN19. Comment of State of Michigan, Department of State Police, at 2-3
(June 3, 1991). But see Reply Comments of Personal Radio Steering Group
of Ann Arbor, Michigan (July 8, 1991) (noting that ARRL has not
requested the preemption of state and local laws that proscribe unlawful
actions taken by amateur licensees).

FN20. Comment of State of Michigan, supra, at 2-3. But see parahraph 12,
n. 40, infra (noting the comments supporting preemption filed previously
in this proceeding by the Associated Public Safety Communications
Officers (APCO)). 

FN21. See, e.g., Comment of John F. Fuhrman at 4 (April 29, 1991),
Comment of Joseph Reymann at 9, 14 (May 24, 1991), and Comment of Mark
D. Tavaglini at 3 (July 5, 1991).

FN22. See, e.g., Comment of ARRL at 12 & n. 6, 14 (June 7, 1991);
Comment of Association of North American Radio Clubs at 5 (April 30,
1990); Comment of Radio Communications Monitoring Association at 5 (June
6, 1991). With respect to scanner laws at the local level, ARRL has
notes that it is difficult to determine the precise number of such
ordinances. See Comment of ARRL at 12 (June 7, 1991); See also Letter
from ARRL to the Chief, Private Radio Bureau, Federal Communications
Commission, Washington, D.C. (May 26,1993) 1993) (noting local scanner
laws in effect in Newton and Overland Park, Kansas, Jersey City, New
Jersey, and Kansas City, Missouri). 

FN23. Comment of National Communications System at 2-4 (June 7, 1991).

FN24. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699-705 (1984)
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). 

FN25. Fidelity Fed. Savings & Loan Ass'n v. de la Cuesta