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Originally Posted by scosgt
It occurs to me that since there are almost no analog cell phones anymore (if there are ANY they for sure will be gone soon, when an old phone breaks down they will not replace it with an analog phone), we should be petitioning the FCC to unblock the "cellular" frequencies.
What a pointless ban, everything (even TV) is going digital, and there is no way to listen to digital cell on any scanner or general coverage rig, SO GIVE US BACK OUR FREQUENCIES!
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I know this thread is going to open up a can of worms and may get locked. I won't be happy if it does get locked because the topic is worthy of debate. This topic NEEDS more public debate.
Disclaimer: I'm not a lawyer nor do I pretend to be one. These are my opinions only, so take them with a grain of salt...
I'm not disagreeing with you but...You need to petition Congress, short of formally challenging the law as unconstitutional and being prepared to battle it all the way to the US Supreme Court. The cell phone industry has the resources to defend itself in the courts. The average scanner hobbyist doesn't.
Petitioning the FCC won't work because the (unconstitutional) cellular radio frequency censorship under the illusion of privacy protection for uninformed (and misinformed) cell phone users was created by CONGRESS, not the FCC, and was paid for by the cell phone industry lobbyists. The FCC had nothing to do with it but simply had to do what Congress directed them to do via legislation, like it or not. The belief that the FCC did this is a common misconception.
Take a close look at the Communications Act of 1934. The Act created the FCC and the rules and regs the FCC must enforce. If you examine the Act closely, the Act DOES NOT prohibit radio reception. It's technically not the FCC's department to regulate what people should or shouldn't receive on a radio receiver. The FCC obviously has to regulate who transmits according to the Act and international radio treaties. They regulate who transmits, not who receives a transmission. The FCC also regulates unintentional emissions from unlicensed devices (the famous Part 15) through the formal type acceptance process. Congress abused the intent of Part 15 rules and regs by forcing the FCC to deny Part 15 type acceptance of any scanning recevier "capabable of receiving" or capable of being "readily altered by the user" to receive these "prohibited" transmissions. So don't bother petitioning the FCC because it's not their department. The FCC had to do what Congress told them to do, like it or not. Scanning receivers represent the first radio receivers in US history to be micro-managed (read: censored) by Congress.
The outright prohibition on reception of transmissions from cell phones and a few other services was created by the Electronic Communications Privacy Act of 1986 (ECPA '86). In 1992 Congress snuck in a provision in a telecom bill in a last-minute midnight manuever which directed the FCC to deny Part 15 type acceptance of scanners that received cellular or could be readily modified to receive cellular. Then in 1999, the FCC modified Part 15 rules and regs requiring scanners to be hardened up against modification. After 9/11, Congress enacted the Cyber Security Enhanement Act (CSEA). The CSEA removed the leniency for first-time violators of ECPA'86 (was only a $500 fine) and increased the penalties for a first time offense up to $500,000.00 and 5 years imprisonment! So now you can be fined half a million dollars and put away for 5 years for listening to the "wrong" radio transmission, even if you don't divulge or use the contents! Just reception alone is outright prohibited! This is outragious! This makes my blood boil (and maybe yours too!) and there's almost nothing which outrages me more than government out of control!
I agree as a matter of principle that the cellular radio frequency censorhip in our scanner has to go. ECPA'86 already fails several constitutional tests but they have yet to be tested in the courts because the law is so fundamentally flawed, technically self-contradictory, and virtually unenforceable. The handful of cases that have been prosecuted over the years were a result of somebody doing something with what they heard, which was already prohibited under Section 705(a) of the Communcations Act of 1934. Had they kept their mouths shut and done nothing with what they heard, they wouldn't have been caught and the fact they monitored cell phone transmissions would have remained undetected.
The courts have continuously held since the earliest days of radio communications that radio transmission are not private, there's no privacy implied while transmitting, and the laws of Congress won't change the laws of physics. I agree with court's viewpoint because it appears to be consistent with reality and common sense. IMHO, in order for a cell phone to be an exception, cell phones (including digital phones) would have to work against the laws of physics in order to function.
Since the radio spectrum is a physically free, natural resource, it is public by its very nature. It is also public in that all activities carried out there, such as transmitting, are done publicly. There's no privacy implied whatsoever and it's not reasonable to expect any since actual privacy does not exist to any degree whatsoever.
It can be shown that radio listeners aren't being nosey at all. There is inherently nothing wrong with the activity in and of itself. It is the people that do the transmitting that are being exhibitionists in public. Transmitting is sort of like walking around naked in public. Prohibiting radio reception under the illusion of privacy protection is like requiring the public to not notice and divert their attention away from the guy walking around naked in public. Transmitting on a radio frequency and naively expecting it to not be overheard by others is like walking around naked in public and expecting the public to not notice.
It is a mistaken notion that radio communications privacy can be achieved by banning radio receivers and regulating what radio transmissions people may listen to. Such beliefs are rooted in common misconceptions regarding the physically public nature of radio transmissions.
At the same time however, don't confuse any of this with a "right to listen". Contrary to popular belief, we actually DON'T have a right to listen to a radio transmission. Just because we CAN listen doesn't necessarily mean we have a Constutional right to do so. Since there's no privacy implied while transmitting and not reasonable to expect privacy, it can be said that the people doing the transmitting have no more right to privacy than third parties have any right to listen.
At the same time however, I argue that we don't necessarily have to AVOID doing monitoring these transmissions because they are still taking place publicly in a public "place". I argue that not having a right to listen to a radio transmission and having to AVOID listening to a radio transmission are two different things. I think this part of why Section 705(a) of the Communications Act of 1934 exists where it says you can't divulge or beneficially use the contents of communications monitored if not the intended recipient. They basically weren't talking to YOU is what it boils down to, so don't do repeat or do anything with what you hear. It protected the rights of all parties involved and does so without denying the basic characteristics of radio. The problem with ECPA'86 is it outright prohibits radio reception under the illusion of privacy protection even though there's no privacy implied and actual privacy doesn't exist to any degree whatsoever.
These arguments have been made to Congress by the radio hobbyists back when Congress was considering ECPA'86. They fell on deaf ears as Congress was bought by the cell phone industry lobbyists. I think nothing short of a formal constitutional challenge will have any chance of being successful.
I can sum the whole absurd legal situation up in one word: UNCONSTITUTIONAL!
Don't get me wrong here. It's not that I want to listen to cell phone conversations. Those that I heard prior to 1/19/1987 when ECPA'86 took effect were BOARING to listen to, except for an occasional good one. It's the attacks on fundamental freedoms under the illusion of privacy protection that I have issue with. It's really a Civil Liberties issue that's ripe for a challenge. Being told by government what to avoid listening to on the public airwaves is not good for our civil liberties.
The laws have set dangerous and grave legal precedents that say: (1) Banning radio receivers is OK in a free society. (2) Regulating what people may listen to is OK in a free society, even if people don't divulge or beneficially use the contents of communications monitored. Bottom line is ECPA'86, the cellular frequency censorship in scanners, and the effects of ECPA'86 on other laws (CSEA) have to go. The whole absure legal situation is ripe for a constitutional challenge. (Maybe a class-action lawsuit by scanner listeners?)
Here's why I think it's unconstitutional:
The radio spectrum is a physically free, natural resource, and is physically public by its very nature. It is a public "place". It is also public in that all activities carried out there, such as transmitting, are done publicly. Transmitting is a public act being committed in a public place, regardless of the intent of the person doing the transmitting. The radio spectrum can therefore be considered to be a "Free Assembly Space".
ECPA'86 and the cellular frequency censorship violate our First Amendment right to Freedom of Assembly in the following ways: (1) Through an outright prohibition on radio reception, even if a listener doesn't divulge or use the contents of the communications, and (2) by attempting to limit access to the means of Assembly - by censoring a radio receiver's frequency coverage and capabilities.
People often say it's Free Speech issue, but it's not. I argue it's more of a Freedom of Assembly issue. Fundamentally is a prohibition on Assembly (radio reception), where the prohibition is based solely on the Assembly Space's contents (what you're listening to in the radio spectrum, prohibited by ECPA'86 under the illusion of privacy protection). It's fundamentally a content-based prohibition on Freedom of Assembly....done under the illusion of privacy protection for uninformed cell phone users.
I argue we don't have a Constututional "right to listen" to a radio transmission and this has been upheld by the courts. At the same time, I argue that we don't necessarily have to avoid observing a public utterance (radio transmission) taking place in a Free Assembly space (radio spectrum). I argue Not having a "right to listen" and having to "avoid" listening are two different things. ECPA'86 says we must outright AVOID receiving certain radio transmissions, even if we don't divulge or use the contents of the transmission.
Radio listeners aren't being nosey. It is the people that do the transmitting that are being exhibitionists in public. The courts have consistently held in all kinds of privacy cases that there's no privacy implied while being an exhibitionist in public. I argue that radio communications privacy matters are no exception. If you want radio communications privacy, that's your responsibility since you're the one broadcasting your convsersation to the world. If you're using a "communications for hire" type service, i.e., using a cell phone through a service provider, the responsibility for securing privacy belongs with the service provider.
There are other points I could make but this has turned into a LONG rant. Sorry for the rant, but this topic really gets my blood boiling!
Time to get back the Cellular Freqs
It's nice to have the platform at RR in order to put forth our opinions on the hobby, even if we all don't share the same ones.
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