Scanning in NY (Ideas about the Law)

[n2mdk]

That is the ARRL lawyers' opinion. I disagree.

Historically, ham stations have consisted of a transmitter and a receiver. Even modern stations do not always have those two items in the same box. A scanner is as much a legitimate part of a licensed ham station as is a general coverage shortwave receiver.

And that's your opinion, the facts remain PR Docket 91-36 specifically states transceiver which is not a seperate transmitter and receiver.

 

[DaveNF2G]

Yes, it does. The ARRL was only interested in transceivers. Its petition to the FCC was premised on the assumption that hams only use transceivers in their mobile stations.

The ARRL's presumption was wrong, although that issue is not addressed in the proceeding. If a case were to arise wherein a ham was using my transmitter+receiver argument in defense, the FCC would not be able to gainsay its own historical construction of "radio station" as utilizing a transmitter and a receiver.

 

[nydxa]

People are too paranoid.

Look suspicious and you'll find trouble!
A few years ago I visited Wash DC and had tickets for the White House tour. I had my scanner and an Opto Scout close field freq counter. I placed both on the security table. The federal guard picked then up and asked what they are. I replied, radios. He asked, for what? I told him, I'm a "ham radio operator". He explained that he had to check whether it was OK to take inside the White House. As he keys his radio, the Opto Scout starts beeping. Second guard comes over and says, it's OK to carry it, just don't use it. I agreed and no problem.

After leaving I noticed other guards talking on radios, but I wasn't receiving them. Walked up to him and asked, can you tell me how to get to National Geographic Building? I knew he's have to ask. He used his radio to find out and my Opto Scout grabbed the freq!

Bottom line, don't volunteer any info. And as far as Liberty State Park, I ran into the same situation. When told I can't listen, I politely said, I believe you are wrong. I'm licensed to use this radio. Would you like to see my license? He backed off real quick. Don't be rude, but don't be a whimp.

 

[scosgt]

If..

Look suspicious and you'll find trouble!
A few years ago I visited Wash DC and had tickets for the White House tour. I had my scanner and an Opto Scout close field freq counter. I placed both on the security table. The federal guard picked then up and asked what they are. I replied, radios. He asked, for what? I told him, I'm a "ham radio operator". He explained that he had to check whether it was OK to take inside the White House. As he keys his radio, the Opto Scout starts beeping. Second guard comes over and says, it's OK to carry it, just don't use it. I agreed and no problem.

After leaving I noticed other guards talking on radios, but I wasn't receiving them. Walked up to him and asked, can you tell me how to get to National Geographic Building? I knew he's have to ask. He used his radio to find out and my Opto Scout grabbed the freq!

Bottom line, don't volunteer any info. And as far as Liberty State Park, I ran into the same situation. When told I can't listen, I politely said, I believe you are wrong. I'm licensed to use this radio. Would you like to see my license? He backed off real quick. Don't be rude, but don't be a whimp.

If you came into my facility with a scanner, I would take it away from you, and voucher it, and give it back when you leave. But in a Government facility, you CAN be prohinited from using a scanner/two way radio, carrying a licensed firearm, etc. Or, you can not enter the facility.

 

[comspec]

I can't beleive this topic will not die and all of a sudden everyone is a lawyer.

First off. DO NOT TRY TO INTERPRET THIS LAW. As this has got to be one of the most poorly worded laws I have every seen anywhere.

As we can all use a good laugh. Consider the following except taken verbatim from the law.



who in any way knowingly interferes with the transmission of radio messages by the police without having first secured a permit to do so

OK, now where do I get this permit to interfere with police radio transmission (that is what it says isn't it)

See what I mean by being such a poorly written law.

Now that being said, consider the following.

Nothing in this section contained shall be construed to apply to any person who holds a valid amateur radio operator's license issued by the federal communications commission and who operates a duly licensed portable mobile transmitter and in connection therewith a receiver or receiving set on frequencies exclusively allocated by the federal communications commission to duly licensed radio amateurs.

Again, if you try to interpret this you could try the following. I have an amateur license and I am operating a regular normal store purchased amateur radio on ham frequencies. Therefore NOTHING IN THIS SECTION CONTAINED SHALL BE CONSTRUED TO APPLY to me. And IF I interpret the law that way, then I can also operate a scanner becuase the section does not apply to me.

On the otherhand, I could look at the phrase "who operates a duly licensed portable mobile transmitter" and make the argument that the FCC does not license the transmitter but rather the operator so therefore, no one is exempt from the law, even hams.

So all you aremchair lawyers who read this and THINK they know what this means, you need to consider case law and legislative intent. No matter how poorly the law is written and no matter how badly it needs to be re-written, it is otherwise obvious what the INTENT of the law is.

1) You can not operate a scanner in a motor vehicle
2) If you have a legitamate purpose for operating a scanner you must obtain a permit
3) If you are a ham operator you may operate ham equipment as this law was not meant to prevent you from operating ham equipment.
4) If you are a taxi cab, bus, truck driver, etc. This law does not apply to your radio unless you have programed it to recieve police frequencies.
5) If you are a ham and you have a radio with a wideband recieved you are OK becuase the FCC has approved this device as a ham radio and you are a licensed ham.
6) If you are a ham and have a scanner, you could be in trouble with this law as this was not meant to be a loophole.

That is what the law intended to do and just becuase it it poorly written and could be interpreted 6.02x10^23 ways (Avagadro's number in case you think I made it up) doesn't mean that your interpretation will be accepted by a judge. And when all is said and done, that it all that really matters. What will a judge think?

So bottom line, while the wording is extremely poor, the intent is obvious. I would not take a chance in court with this law. DO NOT THINK YOU KNOW WHAT THIS LAW SAYS as no one, not even Perry Mason can tell me what this law means just from the way it is written.

DO NOT TAKE LEGAL ADVICE FROM ANYONE ON THIS BOARD. And that includes me. None of us will be there in court to bail you out if you take our advice and get in trouble.

 

[DaveNF2G]

Except for number 4 above, I agree with most of what you say. In fact, many of those arguments appear in my article at http://nf2g.com/scannist/VTL397.html .

 

[comspec]

Except for number 4 above, I agree with most of what you say. In fact, many of those arguments appear in my article at http://nf2g.com/scannist/VTL397.html .

Really #4. I thought you would of had more of a problem with #5.

Again, I was expressing what I beleived was legislative intent. I don't for one minute think the State thought they could enact a statute that regulates GRMS radio.

Now if someone operating an unliscenced radio in their taxi cab that is "capable" of operating on police frequencies was prosecuted under this law. That would not surpise me. Especially if they were up to no good.

I must admit, I would be curious to know how NYC handels Marine Channel 17. Harbor is very possesive of it yet I hear all kinds of illegal transmission on it.

My original point remains however, and on this we both agree, the law is so poorly written and much of it untested that I would not presume to know how any particular situation would be adjudicated in a court of law.

I have seen these questions a million times on this board and I am sure I will see a million more. It is always from people who (like me) want to operate a scanner in their car and are looking for a legal way out in case they get caught.

My advice (not legal adive, just friendly advice) is to ASSUME that having a scanner in your car is ILLEGAL. This is the same opinion that the ARRL lawyers issued. A scanner MAY be legal for a ham, but do you really want to spend time money and risk a conviction (which will cost you more time and money) to find out???

I would rather err on the side of caution then wave my scanner and ham licence at every trooper I pass yelling "Ha Ha can't touch me."

 

[DaveNF2G]

My only complaint about #4 is that it is a pure extrapolation. Nothing in the statute can be used to confirm that particular statement. However, the legislative history of the statute could be construed to argue against it. Tow truck operators jumping accident calls were a primary motivation for passing the law in the first place.

I'm not saying that you are wrong per se, just that there is really no "proof" that you are right.

I agree with #5. My contention is that a ham station can be more than a one-piece transceiver, which does not contradict what you said.