Folks, the topic of discussion is the reported use of amateur radio equipment on Part 90 frequencies during a California wild fire, not what happened in the aftermath of a hurricane in Puerto Rico. Amateur radio activities in one large-scale emergency does not justify what reportedly happened in California.
Pregnant lady is stopped for speeding on the way to the hospital. She no longer is a risk to safety on the roadway. Does the police officer assist her and later give her a speeding ticket? Pretty sure there are no exceptions for speeding by the general public in the traffic laws. It's just good practice not to issue a speeding ticket. Heck, that one would never make it past the DA.
I am not a lawyer.
But, I once served as a juror in a case where a woman, who had been consuming cocaine and alcoholic beverages, decided to drive 20 miles to get treatment for a head injury allegedly caused by her spouse. In those 20 miles, she drove by several hospitals, police stations, and fire stations. During the course of her trip, she was stopped by a state police officer who determined that the woman was intoxicated and took the woman, with her consent, to a hospital for a blood draw which later proved that she was intoxicated. The woman's attorney used an "affirmative defense" to say that her illegal actions, four variations of driving while intoxicated, were mitigated by her desire to seek medical treatment and escape her abusive spouse. We, the jury, didn't buy it and found the woman guilty of the charges.
Would an affirmative defense apply if the FCC decided to charge the fire department or the helpful amateur radio operators for transmitting in Part 90 with a non-FCC-certificated radio? Probably. Would the FCC accept that defense? Maybe. Would the FCC even issue a citation for this action? I don't think so. As others have stated, the FCC has bigger fish to fry.
But, as stated above, the FCC is pretty clear in §90.203 that certification is required. As stated above, the FCC has been pretty clear that using non-FCC-certificated radios in Part 90 could result in confiscation of the radios. Unfortunately, there are a lot of amateur radio operators who believe that §97.403 is justification for ignoring the rest of the FCC's rules. And, now we have a situation where a group of amateur radio operators are being heralded for violating the rules.