Here is the text of the above-linked document:
________________________________________
- Before the
Federal Communications Commission,
Washington, DC 20554
(PR Docket 91-36)
In the Matter of
Federal Preemption of State
and Local Laws Concerning Amateur
Operator Use of Transceivers
Capable of Reception Beyond
Amateur Service Frequency Allocations
MEMORANDUM OPINION AND ORDER
Adopted: August 20, 1993; | Released: September 3, 1993
By the Commission:
I. INTRODUCTION
▪ 1. On November 14, 1989, the American Radio Relay League, Incorporated (ARRL), filed a Motion for a Declaratory Ruling requesting that the Commission preempt certain state statutes and local ordinances affecting transceivers used by Amateur Radio Service Licensees. The laws referenced by the ARRL prohibit the possession of such transceivers if they are capable of the reception of communications on certain frequencies other than amateur service frequencies. On March 15, 1990, we released a public notice inviting comment on ARRL's request. In addition, on February 28, 1991, we released a Notice of Inquiry that solicited additional comment to assist us in making a decision in this matter. This Memorandum Opinion and Order grants the request to the extent indicated herein.
II. BACKGROUND
▪ 2. The ARRL motion discusses state statutes and local ordinances commonly known as "scanner laws," the violation of which may be a criminal misdemeanor with the possibility of equipment confiscation. Specifically, ARRL notes that state statutes in New Jersey and Kentucky (which have subsequently been changed --see paragraph 3, infra) prohibit the possession of a mobile short-wave radio capable of receiving frequencies assigned by the Commission for, inter alia, police use. In addition, ARRL states that local ordinances exist throughout the United States that similarly prohibit the possession of such mobile short-wave radios without a locally-issued permit. Therefore, ARRL explains, scanner laws can, inter alia, render amateur radio licensees traveling interstate by automobile vulnerable to arrest and to the seizure of their radio equipment by state or local police.
▪ 3. Since the ARRL motion was filed with the Commission, New Jersey repealed its statute and substituted a new, narrowly tailored scanner law that only applies in the criminal context. In addition, Kentucky amended its statute by adding an exemption applying to amateur radio licensees. As a result, there no longer appears to be any state scanner law with a deleterious effect on the legitimate operations of amateur radio service licensees. Nonetheless, the preemption issue raised by the ARRL motion remains timely because it appears that some local scanning ordinances remain in effect without safeguards to protect the legitimate use of such radios by our licensees.
III. MOTION, INQUIRY AND COMMENTS
A. The ARRL Motion.
▪ 4. ARRL makes two arguments in support of preemption. First, it states that the receiver sections of the majority of commercially available amateur station transceivers can be tuned slightly past the edges of the amateur service bands to facilitate adequate reception up to the end of the amateur service bands. ARRL seeks a preemption ruling that would permit amateur operators to install in vehicles transceivers that are capable of this "incidental" reception. Although ARRL's formal request is couched in terms of this first, technical point, the request focuses almost entirely on a second, broader issue of whether state and local authorities should be permitted, via the scanner laws, to prohibit the capability of radio reception by amateur operators on public safety and special emergency frequencies that are well outside the amateur service bands.
▪ 5. Concerning the broader issue, ARRL argues that amateur operators have special needs for broadscale "out-of-band" reception, and that the marketplace has long recognized these needs by offering accommodating transceivers. According to ARRL, all commercially manufactured amateur service HF transceivers and the majority of such VHF and UHF transceivers have non-amateur service frequency reception capability well beyond the "incidental" -- they can receive across a broad spectrum of frequencies, including the police and other public safety and special emergency frequencies here at issue. This additional capability, argues ARRL, permits amateur operators to participate in a variety of safety activities, some in conjunction with the military or the National Weather Service. In both cases, reception on non-amateur frequencies is necessary. Such activities benefit the public, according to ARRL, especially in times of emergency, and some require the mobile use of the amateur stations. ARRL states that, in addition, the vast majority of amateur operators take part in these mobile activities, and that the widespread enforcement of scanner laws would render illegal the possession of virtually all modern amateur mobile equipment. ARRL states that, as a result of scanner laws, "several dozen instances of radio seizure and criminal arrest [have been] suffered by licensed amateurs."
B. The Inquiry and Comments.
▪ 6. The Commission's February 28, 1991 Inquiry solicited additional information concerning the technical and financial feasibility of modifying existing amateur service mobile transceivers to render them incapable of receiving police or other public safety channels. We also asked for information concerning the current and future marketplace availability of mobile equipment meeting the restrictions of the laws and whether there is value in having an available pool of wide-band, mobile amateur equipment in the United States to meet emergency needs.
▪ 7. In response to the Inquiry, we received 115 comments and reply comments, of which the great majority are from individual amateurs who support the preemption. One commenter, the Michigan Department of State Police, states that although it cooperates with the amateur service during emergencies, it is concerned about isolated incidents of apparently unlawful actions taken by amateur licensees upon receipt of public safety communications outside of the amateur radio band. Therefore, it concludes that "there can be no beneficial need for amateur radio equipment to tune in public safety channels." Of the remaining comments received, only a few address the technical and marketplace questions described above. These comments are from individual amateur operators who state that existing wide-band transceivers cannot be modified to meet the restrictions of the scanner laws without substantial expense and that this situation will continue as new equipment becomes available. Despite our specific request in the Inquiry that manufacturers comment on these technical and financial questions, no manufacturer chose to respond on these points. We also received a few comments describing the prevalence of scanner laws nationwide. Finally, the National Communications System (NCS), of the Department of Defense, states in its comment that the federal government utilizes amateur operators in a number of programs requiring mobile, wide-band transceivers.
IV. DISCUSSION
▪ 8. There are three ways state and local laws may be preempted. First, Congress may expressly preempt the state or local law. Second, Congress may, through legislation, clearly indicate its intent to occupy the field of regulation, leaving "no room for the States to supplement." Last, and most important for this discussion,
- [e]ven where Congress has not completely displaced state regulation in a specific area, state law [may be] nullified to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility,"...or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
Furthermore, "[f]ederal regulations have no less preemptive effect than federal statutes."
Continued...
