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." 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."
Furthermore, "[f]ederal regulations have no less preemptive effect than federal statutes."
▪ 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.
This federal interest in the amateur service is also reflected in Section 97.1 of our rules, 47 C.F.R. § 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." 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."
▪ 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. Congress therein directed all Government agencies to take into account the valuable contribution of amateurs when considering actions affecting the amateur radio service. 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 rule making proceeding to modify the rules governing the amateur radio service,- In 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 reason, we propose to delete current rules that relate to station operation away from the authorized fixed station location.
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.
▪ 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 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. It conflicts directly with the federal interest in amateur operators being able to transmit and receive on authorized amateur service frequencies.
▪ 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. 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. 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. 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.
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 operator's 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
|