Ham banned from DMR network, sues in state court to regain access

[1234567890]

Lawsuit: Kenneth L Bryant v NCPRN, et al | PRN

Kenneth L Bryant (K1DMR) v NCPRN, et al

We have been able to get the message about this lawsuit out, so we are removing some of the content in order to keep this page clean. Below is a quick summary of the situation.

On June 4th, 2015, a former user of the PRN System sued 42 of the repeater owners. You may read the Complaint by clicking on the download link below. The issue before us is whether repeater owners have the right to determine who can and cannot use their network. I believe this is an important issue with ramifications for our entire community.

I think this action is bad news for ham radio. It's alleged that Ken Bryant K1DMR was engaging in conversations on the NCPRN network in which he had a pecuniary interest. it's alleged that NCPRN asked him to stop it, and he did not comply. So they revoked his access to the network by banning his ID number and now he's suing them.

As you can see from the complaint, Ken Bryant K1DMR seems to be under the impression that use of someone else's ham radio equipment is a socialist construct, and that repeater and network owners have some obligation to provide "due process" when revoking a user's access to their equipment

I believe this flies in the face of Part 97 and the Commission's long established precedent with respect to control operators having control over who uses their equipment.

 

[bill4long]

97.3 (40) Repeater. An amateur station that simultaneously retransmits the transmission of another amateur station on a different channel or channels.

97.205 (e) Limiting the use of a repeater to only certain user stations is permissible.

You'd think hams would actually read Part 97 once in a while.

When the Plaintiff joined their club, the club did not grant him ownership of the repeater system.

Part 97 does not require any "due process" for the banning of certain operators.

If Plaintiff paid any dues to join the club, he may be able to recover those. The complaint does not mention any dues paid.

As for denying use of the repeater system, since Plaintiff has no ownership, the local civil court has no jurisdiction in this matter, but is soley a matter for the FCC. Plaintiff is free to make a complaint to the FCC and see how far that goes before it makes it into the trash can.

On the PRN website: "First and foremost, understand that the PRN System itself is not a club, therefore there are no members, no monetary dues, no application fee, no elected officers and no by-laws. Instead, the network is made up of independent, privately owned repeaters. These repeater owners have linked together to help create a network because they believe in the same idea: that having a wide-area linked digital radio system can be fun and beneficial. Even though the repeaters are linked, the individual repeater owner retains full ownership of their repeater(s) and may decide at any time, without prior warning, who may use them and who may not. Per FCC regulations 97.205(e), “Limiting the use of a repeater to only certain user stations is permissible.” While this type of action is rare in the Amateur Radio world, there may be times when it is necessary. For example, it may be used where jamming is an issue. By using the PRN System, you agree to these statements. If you do not agree to these statements, that is your choice, and we simply ask that you not use the system."

Plaintiff says he "became a member." But there is no membership. So then what does he mean? That he obtained his DMR code and entered it into his radios thereby making him a "member"? Haha.

Disclaimer: This post does not constitute legal advice.

 

[QDP2012]

With law that clear, maybe the lawsuit will be considered frivolous. Then again, not likely.

 

[Project25_MASTR]

However the state has stated that due to the lack of Federal enforcement, the FCC has no jurisdiction in this matter. His suit has also gotten him banned from several C-Bridges on pincipal.

There is an interesting thread on P25.ca on the subject (less politically correct of course).

Sent from my SM-T350 using Tapatalk

 

[TheSpaceMann]

Everything today is a lawsuit! He probably has a lawyer in the family, and it sounds like he may want to just bankrupt the repeater owners by overwhelming them with legal fees for their defense. .

 

[Project25_MASTR]

Everything today is a lawsuit! He probably has a lawyer in the family, and it sounds like he may want to just bankrupt the repeater owners by overwhelming them with legal fees for their defense. .

The primary complainants and John Doe's 1-40.

He's claiming that the banning has caused him to lose commercial sales...

Sent from my SM-T350 using Tapatalk

 

[bill4long]

However the state has stated that due to the lack of Federal enforcement, the FCC has no jurisdiction in this matter.

The state has no jurisdiction to arbitrarily decide what constitutes proper federal enforcement or lack thereof. They would have to sue in federal court to resolve such an issue.

What is your source for this?

 

[bill4long]

He's claiming that the banning has caused him to lose commercial sales...

The irony. Apparently, this guy has the equivalent IQ of a 15 watt light bulb when it comes to the issues at hand.

97.3 (4) Amateur service. A radiocommunication service for the purpose of self-training, intercommunication and technical investigations carried out by amateurs, that is, duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest.

97.113 (a) No amateur station shall transmit: (3) Communications in which the station licensee or control operator has a pecuniary interest... with the following exceptions (ii) An amateur operator may notify other amateur operators of the availability for sale or trade of apparatus normally used in an amateur station, provided that such activity is not conducted on a regular basis.

Plaintiff is in the regular business of selling commercial Motorola radios, which are not primarily directed to the Amateur Radio market:

"North Georgia Communications is a DBA of Bryant Enterprises, LLC."

https://www.ngacomms.com/

Disclaimer: this post does not constitute legal advice

 

[bill4long]

I think this action is bad news for ham radio.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

[KC4RAF]

In the "Salkin v. California Dental Assoc. referrence,

the courts just may rule in that guys favor.
The FCC should handle this, and not the courts.

 

[bill4long]

There is an interesting thread on P25.ca on the subject (less politically correct of course).

What's the link?

 

[N4GIX]

I don't understand some of the conflicting statements Ken has made in this tort claim. He claims to have suffered a financial loss, but...

...he also claims that he was selling at or even sometimes below cost to fellow hams.

If the latter is true, then he's not only lost nothing, he may actually be benefiting by not "loosing as much" by selling below cost.

What is the most galling aspect of this situation is that one of the named defendants is an elderly blind ham. The other is a young college student who's had to sell his repeater and other radios to offset the costs of mounting a defense!

While Ken may well "win" this frivolous law suit, he will go down in history as the "most hated amateur in the world" no matter the outcome. :evil:

 

[TheSpaceMann]

the courts just may rule in that guys favor.
The FCC should handle this, and not the courts.

That's what he's hoping for! This could become a long drawn out expensive legal battle.

 

[K5MPH]

What's the link?

www.p25.ca

 

[bill4long]

www.p25.ca

Before I asked you I found the p25.ca site. But I searched the site and found nothing about this case.

What's the link to the thread?

 

[bill4long]

That's what he's hoping for! This could become a long drawn out expensive legal battle.

I'm doubting the skill of the defendant's council. Or maybe the lawyer just wants to rack up fees. Who knows. I'd like to see the Answer to the Complaint. Properly defended, it should never have gone past the initial hearing, IMO. It's about as groundless as a complaint as I've ever seen. Lots of words, no valid grounds. And the judge thinks it's valid enough for a jury. Haha. (I'll have to get the Answer and the transcript.) The defendants may lose, and they will have to appeal if they have the funds. Appellate court judges are usually a lot more savvy with the technicalities. Let's hope the defense gets competent council.

If the Plaintiff gets any relief at all it will have to be on some sort of "property rights" grounds. The Plaintiff will have to demonstrate that he has some ownership in the system he was banned from. This is not going to be easy. (I can see no grounds at all for it, from what I read in the Complaint.) Moreover, this will not impact repeater owners from banning non-owning operators whatsoever per Part 97, so that is nothing at all for anyone to worry about.

Disclaimer: this post is personal opinion, and does not constitute legal advice

 

[teufler]

Hollingsworth once told me, in effect, that repeater owners and the4ir repeater was like a country club. They could restrict users much like a country club restricts membership. A club could be all white, all jewish, all catholic, just as a repeater could be restricted or exclusive. So I suppose if the repeater owner wanted to restrict "membership or usage", they could do it. Even though a repeater is open, it can be open to a select few, or select many minus one or two.

 

[TheSpaceMann]

Hollingsworth once told me, in effect, that repeater owners and the4ir repeater was like a country club. They could restrict users much like a country club restricts membership. A club could be all white, all jewish, all catholic, just as a repeater could be restricted or exclusive. So I suppose if the repeater owner wanted to restrict "membership or usage", they could do it. Even though a repeater is open, it can be open to a select few, or select many minus one or two.

True, but in today's "politically correct" world, you can bet that there will be people who will want to challenge that! Even a frivolous lawsuit could inflict quite a bit of damage to a club's finances.

 

[AK9R]

My initial reaction when I saw this thread was to move it to the Digital Voice for Amateur Radio forum. I'm going to leave it here, however, since the decision will impact every amateur radio repeater owner operating under FCC rules whether it's DMR, D-Star, Fusion, analog, or otherwise. I think the decision may also impact networks of repeaters such as AllStar, Echolink, and IRLP. Since I have an ownership interest in several repeaters, I am very interested in the outcome of this case.

I do ask that you keep the conversation civil and on topic. If you are going to reference FCC rules, please quote the rule in question (as has been done in earlier posts in this thread). If someone makes a post that you disagree with, attack the ideas, not the poster.

This case was filed almost a year ago. Has the court ruled on this case?

 

[N4GIX]

Before I asked you I found the p25.ca site. But I searched the site and found nothing about this case.

What's the link to the thread?

http://forums.radioreference.com/am...es-state-court-regain-access.html#post2573338

There is a link there to a PDF document* from Ken's attorney, as well as a copy of an amendment to the original suit. He is now suing for both "libel and defamation of character" based on public postings by PRN, as well as disclosure of information that was privileged.

I hate to say this, but the defendants have managed to foul their own nest enough that even if the original tort actions are dismissed, the new actionable items added may well not be. It's not possible to "un-ring a bell" after all.

* http://www.legal-nc.com/BryantPRNNotice.pdf