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

[AK9R]

There is a third issue as well; remember that they offered to remove the ban if he stopped trying to sell radios and refrained from "promoting" his business on their system.

This is an aspect of this suit that has me scratching my head.

§97.113 Prohibited transmissions.
(a) No amateur station shall transmit:

...

(3) Communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer, 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.

If the plaintiff is using amateur radio, no matter what repeater or system of repeaters he's using, to sell any product on a regular basis and/or for which he derives a profit, it would seem that his use of amateur radio is in violation of 97.113. This seems very clear to me and would also seem to give the repeater trustee(s) unequivocal justification to ban the guy from their repeater(s).

 

[N8OHU]

This is an aspect of this suit that has me scratching my head.

Me too.

If the plaintiff is using amateur radio, no matter what repeater or system of repeaters he's using, to sell any product on a regular basis and/or for which he derives a profit, it would seem that his use of amateur radio is in violation of 97.113. This seems very clear to me and would also seem to give the repeater trustee(s) unequivocal justification to ban the guy from their repeater(s).

Without being able to hear whether he specifically mentions being in the radio sales business when he mentioned have radios to sell, we only have the claims and counter-claims made so far in the case to go by, so it's not as clear as it could be.

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[bill4long]

This seems very clear to me and would also seem to give the repeater trustee(s) unequivocal justification to ban the guy from their repeater(s).

A repeater owner needs no justification whatsoever, to limit who uses his repeater(s).

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

The FCC has consistently upheld this in the broadest application.

 

[wb6uqa]

If the repeater owner don't want him on and he goes on he is stealing the owners electricity.

 

[Project25_MASTR]

More to the point, in a recent post on their forum, they admit they cannot prove conclusively that the plaintiff did what they claim he did by providing an audio recording of the conversation in question, which I had suspected since the judge refused to dismiss the case.

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As a repeater/system owner, you can ban anyone you want regardless. You can ban them because they can't speak fluent Klingon.

No matter how you slice this, it's a state government trying to regulate federal regulation.

 

[AI7PM]

No matter how you slice this, it's a state government trying to regulate federal regulation.

Actually, it's a state government being ASKED by a ham to act. They have to, by law, reply and go through the motions. We will all have to wait for the chest beating by the attorneys, agencies, and individuals to run it's course.

As another ham said further up the thread, " we only have the claims and counter-claims made so far in the case to go by, so it's not as clear as it could be."

And when it's over and done with? We still may not know anymore than we ACTUALLY know today. If we are all honest with ourselves, we don't know Jack S--t about it, other than two or more private parties have a disagreement that has been partially aired publicly.

 

[bill4long]

Actually, it's a state government being ASKED by a ham to act. They have to, by law, reply and go through the motions. We will all have to wait for the chest beating by the attorneys, agencies, and individuals to run it's course.

As another ham said further up the thread, " we only have the claims and counter-claims made so far in the case to go by, so it's not as clear as it could be."

And when it's over and done with? We still may not know anymore than we ACTUALLY know today. If we are all honest with ourselves, we don't know Jack S--t about it, other than two or more private parties have a disagreement that has been partially aired publicly.

There's a couple of things that are known with great confidence, with regard the First Issue of the Complaint, as I call it, that the FCC consistently has broadly applied the right for repeater owners to limit who uses their system, for any reason, or for no reason at all, and that the state of North Carolina has no jurisdiction in this matter whatsoever.

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

"the FCC has exclusive regulatory power over matters involving use of the radio frequency spectrum."

From the FCC's website: https://transition.fcc.gov/connectglobe/sec2.html

As for Second Issue in the Complaint, the Plaintiff alledges that he "joined" a "club" and because of this was denied "due process" because of his "membership", according to North Carolina statute. This is the murky issue, because details are missing. NC-PRN explicitly states on their website they are not a club, have no membership and no dues, and that they reserve the right to ban anyone at any time for any reason, etc., and if you don't agree you are not allowed to use the system. So, if all the Plaintiff did was get a DMR-MARC ID from DMR-MARC (which NC-PRN does not own and does not control), and then start using that ID to access the NC-PRN system to get on DMR, then he did not "join" any "club", and countless hams can testify to that fact, including myself. Will the jury see it this way? Who knows. But appellate judges are quite good at tossing out specious verdicts. The trial court could even vacate a specious verdict. At any rate, time will tell.

(This post does not constitute legal advice)

 

[NavyBOFH]

The reason I brought it up is because SCHEART DMR links in with NCPRN during "normal operation". Therefore, he could have added SC ETV as one of those amateur radio associations that has banned him by default. However, our network is linked in a way that during an emergency we change up all access and talk groups on the repeaters to assist hospitals with communications. It is stated in writing, and no one should be able to legally whine that they don't have access to the system. During an emergency we also have a VHF AND UHF analog IRLP linked system on all towers that have DMR which is open for amateurs at all times as well. We haven't had issues with people hijacking our system or needing to be banned... But this is something I am watching closely since it can dictate how we handle situations in the future.


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[DaveNF2G]

Actually, it's a state government being ASKED by a ham to act. They have to, by law, reply and go through the motions. We will all have to wait for the chest beating by the attorneys, agencies, and individuals to run it's course.

The court is not compelled by the mere statement of a case or controversy to take action.

The threshold issue in all legal cases is jurisdiction. If the court does not have jurisdiction, then it must dismiss the case. Any other issue is of lesser priority.

 

[AI7PM]

. If the court does not have jurisdiction, then it must dismiss the case.

As I said, "through the motions". One of which is declare no jurisdiction.

Thing is, the court will want to discover and decide that for itself. "Motions". That F.C.C. or federal law exist covering the subject, still has to be examined, presented, then ruled upon. They have to go through the process, regardless of the fact that a 6th grade student holding an amateur radio license could tell them it's federal purview. Bureaucracy in action.

 

[bill4long]

As I said, "through the motions". One of which is declare no jurisdiction. Thing is, the court will want to discover and decide that for itself. "Motions". That F.C.C. or federal law exist covering the subject, still has to be examined, presented, then ruled upon. They have to go through the process, regardless of the fact that a 6th grade student holding an amateur radio license could tell them it's federal purview. Bureaucracy in action.

Right. Plus the lawyers all get to make money

 

[Voyager]

Right. Plus the lawyers all get to make money

Exactly what I was thinking. They go through all the procedure wasting everyone's time and money only to rule "sorry, not our jurisdiction" and the parties have to go through it all again in Federal Court. And people wonder what is wrong with the legal system...

There should be pre-trial fact-finding that dismisses the case without this waste of time and money. I don't know NC law, so I don't know if this exists there or not.

The FCC has jurisdiction over the Amateur Radio bands.

The FCC has jurisdiction over the internet (C-Bridge).

The only thing the NC court might have is the defamation of character case, but even that comes back to one of the first two points.

 

[N8OHU]

Exactly what I was thinking. They go through all the procedure wasting everyone's time and money only to rule "sorry, not our jurisdiction" and the parties have to go through it all again in Federal Court. And people wonder what is wrong with the legal system...

There should be pre-trial fact-finding that dismisses the case without this waste of time and money. I don't know NC law, so I don't know if this exists there or not.

I suspect that this is currently what is going on (the fact-finding part).

The FCC has jurisdiction over the Amateur Radio bands.

The FCC has jurisdiction over the internet (C-Bridge).

Agreed.

The only thing the NC court might have is the defamation of character case, but even that comes back to one of the first two points.

This would never have been an issue if NCPRN or those that read the article on their website would have left it there instead of spreading it around the internet like they did. And the lawsuit wouldn't have been filed if there had been more responsive communication between the parties involved before hand.

 

[SCPD]

How someone's character be defamed by reporting the fact that he filed a lawsuit and declined to settle?

 

[KK4JUG]

How someone's character be defamed by reporting the fact that he filed a lawsuit and declined to settle?

It's all in what was said during the reporting and what was said other places. For instance, things said on Facebook are becoming juicy lawsuit material.

Also, remember, the guy can sue for whatever reason he wants. Winning is a different story.

 

[bill4long]

Also, remember, the guy can sue for whatever reason he wants. Winning is a different story.

Not just "the guy", but anyone can sue anyone for anything.

Hopefully fair adjudication will ensue.

Most of the time frivolous suits are thrown out. And when they're not, the trial judge can toss the verdict.

And if s/he doesn't toss it out, the appellate judges can toss the verdict. (They are very good at it.)

Let's see what happens in this case.

This case is so preposterous, IMO, I'm on tippy toes waiting for the Plaintiff to get it mashed in his face. (As many are.)

But we'll see, won't we.

 

[TheSpaceMann]

As a repeater/system owner, you can ban anyone you want regardless. You can ban them because they can't speak fluent Klingon.

No matter how you slice this, it's a state government trying to regulate federal regulation.

This is why many people object to big government, on both the State and Federal level.

 

[KK4JUG]

This is why many people object to big government, on both the State and Federal level.

This is one of those few instances when the federal government is trying to let the civilian segment regulate itself. They say the repeater owner has the final say. As a general rule, hams have been able to successfully regulate themselves in some areas, e.g., repeater operation, frequency management, etc.

 

[N8OHU]

How someone's character be defamed by reporting the fact that he filed a lawsuit and declined to settle?

If that was all that was said, or if they had simply said "we need help defending against what we feel is a poorly thought out lawsuit" and had not had people posting links to their website, there probably wouldn't have been a problem. It's my understanding that, until a case is settled one way or another, you are not supposed to discuss anything related to it publicly, not even to mention any attempts to settle it and any counter offers made, even if you think your offer was fair and the counter offer wasn't.

 

[RFI-EMI-GUY]

If that was all that was said, or if they had simply said "we need help defending against what we feel is a poorly thought out lawsuit" and had not had people posting links to their website, there probably wouldn't have been a problem. It's my understanding that, until a case is settled one way or another, you are not supposed to discuss anything related to it publicly, not even to mention any attempts to settle it and any counter offers made, even if you think your offer was fair and the counter offer wasn't.

Once a lawsuit is filed it is a public record. Revealing the content of a public record is not defamation regardless of who does the reporting. Businesses do this all the time. They get sued, they state the facts and they usually present some defense.