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  #21 (permalink)  
Old 12-14-2012, 9:52 AM
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What section of the Constitution does the FCC depend upon for its' authority to exist as an "agency"?
I believe that would be Article 1 Section 8 (commonly called the Commerce Clause) and Article 2 Section 2 (Executive Powers Clause)

Pretty smart guys these "Founding Fathers!"
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Old 12-14-2012, 9:56 AM
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We as US hams enjoy some of the most liberal privileges in the ham world.
But for some reason the spectrum permitted wasn't enough for this joker.

He used a US Govt allocated frequency.
Incredible.
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Old 12-14-2012, 10:35 AM
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In other words, by acquiring an FCC license, which you don't have a constitutional right to possess, you basically consent to allowing them to inspect your equipment for compliance?
its a privilege not a right to possess a license. if you don't want to be inspected don't get a license. OR better yet if you don't want to be inspected don't break the rules! pretty simple really.
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Old 12-14-2012, 10:42 AM
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He made a costly mistake. Is he a Moron? Perhaps. Maybe he is just gullible, and truly did not think he was doing anything wrong, as is evident by him cooperating with the FCC. I think they should lower his fine. However if he does something like this again, YES, they should drag him over the coals.

The Ham bands are cluttered with disgusting conversations, cursing and racism. FCC seems to do NOTHING about it. I am not a "goody goody" person myself, but I have had a radio hobby for a long time, and I got my General Class license recently so I could do more with my hobby, and unfortunately, a lot of what I find on the HF bands is garbage. Old, angry, racist, perverted operators with powerful stations that you can't help but hear, who I am sure "get off" somehow being able to express their horrible opinions publicly. Very Disappointed.

However, there is a bright spot, not ALL of the ham bands are clogged up with garbage, some places are decent, you just have to find where you fit in, and it can be a rewarding hobby you can really enjoy, I will be going back next year to get my Extra license so I can make more use of the band and avoid more of the garbage that is very reminiscent of CB Radio's bad side.
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Old 12-14-2012, 4:28 PM
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Originally Posted by Viking1 View Post
somehow the police can't enter your home yet a government bureaucracy that isn't specified to exist within the Constitution can for some reason enter a residence w/o a warrant and interrogate a individual without arrest, Miranda or representation present... Welcome to the police state.....

If there were a free country left, I'd move there.....
The US Supreme Court INTERPRETS the Constitution....this is called "CASE LAW". Obviously you have no clue what this is.


In US Supreme Court Case: CAMARA v. MUNICIPAL COURT, 387 U.S. 523 (1967)387 U.S. 523

The US Supreme COurt clearly states they it is not a 4th amendment violation for a non-law enforcement agency (like the FCC) to conduct an administrative inspection of a licensed activity without a search warrant.

In this case, the FCC agents ASKED to come inside, and this HAM ALLOWED them to come inside. If he had refused they would have obtained an administrative inspection warrant from a judge.

The Constitution is a living document with mountains of ever changing CASE LAW from the supreme court which changes hows its applied to individual cases. Please gain some basic legal knowledge before you post again.
There are 24 exception to the 4th amendment requirement to obtain a search warrant, all from the supreme court. You can read them all here:Case Law 4 Cops-Search & Seizure Case Law
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Old 12-14-2012, 4:43 PM
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Speaking as a long-time ham, after reading the FCC decision on this matter one can only agree with the person above who wrote that the object of the FCC action is a moron, plain and simple. Or, to put it another way, he's one of those persons we've all met who "just doesn't get it." Another telling indicator of how far out this guy's thinking was ws the idea that a Brazilian has the power to authorize radio transmitting authority in another country. A normal person would know better than to believe that kind of totally crazy statement.
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Old 12-14-2012, 4:43 PM
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Yes, but that's been perverted to the point that they have used that clause to effectively nullify the 10th Amendment. Literally everything is said to be within the pervue of the "commerce clause".


Quote:
Originally Posted by n0lqt View Post
I believe that would be Article 1 Section 8 (commonly called the Commerce Clause) and Article 2 Section 2 (Executive Powers Clause)

Pretty smart guys these "Founding Fathers!"
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Old 12-14-2012, 4:45 PM
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You're overlooking a major point, at least one of the infamous Brazilian pirates has been caught and prosecuted on American soil. It's well known they've been hijacking US military satellites for years.

Barbarosa's defense is a tissue of lies and fabrications, the FCC knows it and acted accordingly. A Brazilian license cannot exist for operating a US military satellite, who does he think he's kidding? No way can he weasel out of it standing on the Constitution, the FCC has the legal right to inspect a station WITHOUT A WARRANT during normal business hours or anytime the station is in operation clearly stated in the Part 97 Rules and Regulations. Every ham operator knows he should keep a current copy on hand and operate accordingly. The long and short of it is a radio operator KNOWS he waives certain rights when he applies for a license.

All things considered the FCC is 100% right in everything including reducing the fine for a first offender. That is in keeping with standard practice of law where first timers are given minimum penalties and a chance to change their ways.
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Old 12-14-2012, 4:49 PM
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Who's overlooking what point? I don't think anyone is arguing the legitimacy of the action. The only debate was whether or not they could enter the structure without consent but the report states he let them in so it's a moot point.
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Old 12-14-2012, 5:47 PM
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Who's overlooking what point? I don't think anyone is arguing the legitimacy of the action. The only debate was whether or not they could enter the structure without consent but the report states he let them in so it's a moot point.
A couple of posters here seem to be questioning the legitimacy of the FCC's actions.

Yes, since he let the FCC inspectors in, it's a moot point. Typically, the FCC will ask a licensee for access to their station. By applying for a license, you are granting FCC permission to gain access for inspection. That permission is not implied, it's specifically called out in the various sections of the rules. In those cases where access is not granted, a warrant can be obtained and they'll gain access anyway.
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Old 12-15-2012, 12:40 AM
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Originally Posted by zz0468 View Post
A couple of posters here seem to be questioning the legitimacy of the FCC's actions.

Yes, since he let the FCC inspectors in, it's a moot point. Typically, the FCC will ask a licensee for access to their station. By applying for a license, you are granting FCC permission to gain access for inspection. That permission is not implied, it's specifically called out in the various sections of the rules. In those cases where access is not granted, a warrant can be obtained and they'll gain access anyway.
A warrant issued, if shown proper cause, Ie, what evidence they expect to find.

A warrant issued without cause is not a warrant.
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Old 12-15-2012, 1:31 AM
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Wow didn't think I'd get this many replies.

I'm not a ham but really isn't one suppose to know what frequencies their license is granted to operate on? And any operator should know wether it be ham, gmrs, cb or even Murs that try are not suppose to interfere with someone else's transmission(share the frequency).


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Old 12-15-2012, 2:46 PM
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"Who's overlooking what point?"

How can you read the first line of my post directly above yours and still ask that question? I believe the rest of the sentence following the comma gives full explanation or am I missing something here?
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Old 12-15-2012, 3:51 PM
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Not trying to be rude, seriously not, but I truly don't understand a majority of what you post.
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Old 12-15-2012, 5:44 PM
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Originally Posted by redneckcellphone View Post
After unsuccessfully appealing to the FCC to cancel his $20,000 forfeiture, Joaquim Barbosa, N2KBJ, of Elizabeth, New Jersey was issued a Forfeiture Order stating that he must pay $16,000 for “willfully and repeatedly violating Section 301 of the Communications Act of 1934, as amended by operating a radio transmitting equipment on the frequency 296.550 MHz without Commission authorization.”

FCC Finds New Jersey Ham Violated Communication Act, Reduces Forfeiture from $20,000 to $16,000
This clown must have been only chatting with his Brazilian buddies. If he was really up to no good, the FCC would not be filing a civil action against him. I'm sure the FBI sniffed the case then threw the FCC a bone when they found out the fool was only talking with his pals in San Paulo. Good job Feds. Make this dirtbag pay.
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Old 12-15-2012, 7:17 PM
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In answer to my question as to which section of the Constitution the FCC finds its' authority to exist as a agency, the only answer close is that it is from the Commerce Clause. That provision of the Constitution was used extensively as agency authority under FDRs New Deal when the FCC was legislated in 1934 but that ground has been found lacking by resent Supreme Court rulings. Here is a quote from the high court in US v Lopez that struck down Federal legislation on the possesion of firearms in school zones:

"The Court would also examine the purpose behind the creation of the law, and would invalidate otherwise valid federal regulations if the purpose was to have an effect on something which was outside of the scope of the Commerce Clause." https://en.wikipedia.org/wiki/United_States_v._Lopez

Just guessing but based on resent cases, if a case came up today I expect the Supremes would find that the personal use of a radio is even less a valid object of interstate commerce that a firearm around a school.
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Old 12-15-2012, 9:57 PM
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Originally Posted by K2 View Post
In answer to my question as to which section of the Constitution the FCC finds its' authority to exist as a agency, the only answer close is that it is from the Commerce Clause. That provision of the Constitution was used extensively as agency authority under FDRs New Deal when the FCC was legislated in 1934 but that ground has been found lacking by resent Supreme Court rulings. Here is a quote from the high court in US v Lopez that struck down Federal legislation on the possesion of firearms in school zones:

"The Court would also examine the purpose behind the creation of the law, and would invalidate otherwise valid federal regulations if the purpose was to have an effect on something which was outside of the scope of the Commerce Clause." https://en.wikipedia.org/wiki/United_States_v._Lopez

Just guessing but based on resent cases, if a case came up today I expect the Supremes would find that the personal use of a radio is even less a valid object of interstate commerce that a firearm around a school.
Read US Code Title 47
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Old 12-15-2012, 10:38 PM
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Is there a perticular section of Title 47 that somehow abregates the Law of the Land?

From Article 6:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ......., shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;....."

More specifically now, which section of the U.S. Constitution is Title 47 "made in Pursuance thereof"?
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Old 12-15-2012, 11:09 PM
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Is there a perticular section of Title 47 that somehow abregates the Law of the Land?
No.

Quote:
Originally Posted by K2 View Post
More specifically now, which section of the U.S. Constitution is Title 47 "made in Pursuance thereof"?
Article 1 section 8, clause 18.
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Old 12-16-2012, 1:26 AM
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Originally Posted by K2 View Post
Is there a perticular section of Title 47 that somehow abregates the Law of the Land?

From Article 6:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ......., shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;....."

More specifically now, which section of the U.S. Constitution is Title 47 "made in Pursuance thereof"?
You nearly had it in your reply, but you skipped the important part. See Article 6 in full below (emphasis added).

Quote:
Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Title 47 (along with all revisions and modifications), as passed by congress and signed by the president, is the "Law of the Land". Note that this title, like nearly all of them, are living documents so there isn't just a single congress nor a single president that enacted it. Title 47 has been modified in some way or another by many congressional sessions and those parts have been signed by the presiding president at the time they were enacted.
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