PR Docket 91-36
PR Docket 91-36 is the federal preemption of state and local laws
concerning amateur use of transceivers capable of
reception beyond amateur allocations. This preemption allows amateurs to
possess a transceiver capable of reception
(but not transmission) on frequencies adjoining the amateur VHF/UHF
bands. It does not apply to scanners which are
separate from an amateur transceiver.
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;
By the Commission:
Released: September 3, 1993
I. INTRODUCTION
1. On November 14, 1989, the American Radio Relay League, Incorporated
(ARRL), filed a Motion for a Declaratory
Ruling 1 requesting that the Commission preempt certain state statutes
and local ordinances affecting transceivers 2 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 3 inviting comment on ARRL's request.
In addition, on February 28, 1991, we released a
Notice of Inquiry 4 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.5 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.6 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.7 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.8
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.9 In
addition, Kentucky amended its statute by adding an
exemption applying to amateur radio licensees.10 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.11
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.12 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,13 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,14 and some require
the mobile use of the amateur stations.15 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.16 ARRL states that, as a result of
scanner laws, "several dozen instances of radio
seizure and criminal arrest [have been] suffered by licensed
amateurs."17
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.18 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.19 Therefore, it concludes that "there can be no beneficial need
for amateur radio equipment to tune in public safety
channels."20 Of the remaining comments received, only a few address the
technical and marketplace questions described
above. These comments are from individual amateur operators 21 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.22 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.23
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."24 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."25
Furthermore, "[f]ederal regulations have no less preemptive effect than
federal statutes."26
9. The amateur service is regulated extensively under Part 97 of the
Commission's Rules, 47 C.F.R. Part 97. As we have
stated in the past:
[T]here is...a strong federal interest in promoting amateur
communications. Evidence of this interest may be found in the
comprehensive set of rules that the Commission has adopted to
regulate the amateur service. Those rules set forth
procedures for the licensing of stations and operators, frequency
allocations, technical standards which amateur radio
equipment must meet and operating practices which amateur operators
must follow. We recognize the Amateur Radio
Service as a voluntary, noncommercial communication service,
particularly with respect to providing emergency
communications. Moreover, the Amateur Radio Service provides a
reservoir of trained operators, technicians and
electronic experts who can be called on in times of national or
local emergencies. By its nature, the Amateur Radio
Service also provides the opportunity for individual operators to
further international goodwill.27
This federal interest in the amateur service is also reflected in
Section 97.1 of our rules, 47 C.F.R. §97.1, which provides
that the amateur service exists to "continu[e] and exten[d]...the
amateur's proven ability to contribute to the advancement of
the radio art."28 This regulatory purpose is consistent with the
Communications Act requirement that "[i]t shall be the policy
of the United States to encourage the provision of new technologies to
the public."29
10. The strong federal interest in the preservation and advancement of
the amateur service is also demonstrated by
Congress's recent recognition of the goals of the amateur service in a
"Sense of Congress" provision in which Congress
strongly encouraged and supported the amateur service.30 Congress
therein directed all Government agencies to take into
account the valuable contribution of amateurs when considering actions
affecting the amateur radio service.31 We believe
that the strong federal interest in supporting the emergency services
provided by amateurs cannot be fully accomplished
unless amateur operators are free to own and operate their stations to
the fullest extent permitted by their licenses and are not
unreasonably hampered in their ability to transport their radio
transmitting stations across state and local boundaries for
purposes of transmitting and receiving on authorized frequencies.
Indeed, as a result of advances in technology making
smaller, lighter weight radios commercially available, the Commission
has expressly amended its rules to facilitate and
encourage unrestricted mobile amateur operations. As we noted in a
recent rule making proceeding to modify the rules
governing the amateur radio service,
In the age of the microprocessor and the integrated circuit
[amateur] equipment is highly portable. It is common for
amateur operators to carry hand-held transceivers capable of
accessing many local repeaters in urban areas and also
capable of reasonably good line-of-sight communication. It appears
that the concept of fixed station operation no longer
carries with it the same connotation it did previously. For this
reason, we propose to delete current rules that relate to
station operation away from the authorized fixed station location.32
As a consequence of these changes, the rules now expressly authorize
amateur service operation "at points where the
amateur service is regulated by the FCC," that is, at fixed and mobile
locations throughout the United States. Furthermore, the
Commission's Rules do not in any way prohibit an amateur service
transceiver from having out-of-band reception
capability.33
11. Against this background, we conclude that certain state and local
laws, as described below, conflict with the
Commission's regulatory scheme designed to promote a strong amateur
radio service. Scanner laws that prohibit the use of
transceivers that transmit and receive amateur frequencies because they
also receive public safety, special emergency or
other radio service frequencies frustrate most legitimate amateur
service mobile operations through the threat of penalties
such as fines and the confiscation of equipment. As noted by ARRL,
virtually all modern amateur service equipment in use
today can receive transmissions on the public safety and special
emergency frequencies at issue, and the majority of amateur
stations34 are operated in a mobile fashion. Consequently, the mobile
operations of the vast majority of amateurs are
affected by such laws. In addition, the record statements by amateurs
that the costs would be substantial to modify existing
transceivers are unchallenged. The scanner laws, then, essentially place
the amateur operator in the position of either
foregoing mobile operations by simply avoiding all use of the equipment
in vehicles or other locations specified in the laws,
or risking fines, or equipment confiscation. This very significant
limitation on amateurs operating rights runs counter to the
express policies of both Congress and the Commission to encourage and
support amateur service operations, including
mobile operations, and impermissibly encroaches on federal authority
over amateur operators.35 It conflicts directly with
the federal interest in amateur operators being able to transmit and
receive on authorized amateur service frequencies.36
12. For these reasons, we find it necessary to preempt state and local
laws that effectively preclude the possession in
vehicles or elsewhere of amateur service transceivers by amateur
operators merely on the basis that the transceivers are
capable of reception on public safety, special emergency, or other radio
service frequencies, the reception of which is not
prohibited by federal law.37 We find that, under current conditions and
given the types of equipment available in the market
today, such laws prevent amateur operators from using their mobile
stations to the full extent permitted under the
Commission's Rules and thus are in clear conflict with federal
objectives of facilitating and promoting the Amateur Radio
Service. We recognize the state law enforcement interest present here,
and we do not suggest that state regulation in this area
that reasonably attempts to accommodate amateur communications is
preempted.38 This decision does not pertain to scanner
laws narrowly tailored to the use of such radios, for example, for
criminal ends such as to assist flight from law enforcement
personnel. We will not, however, suggest the precise language that must
be contained in state and local laws. We do find that
state and local laws must not restrict the possession of amateur
transceivers simply because they are capable of reception of
public safety, special emergency or other radio service frequencies, the
reception of which is not prohibited by federal law,
and that a state or local permit scheme will not save from preemption an
otherwise objectionable law.39 Finally, we note,
as stated by APCO in comments filed previously in this proceeding, that
any public safety agency that desires to protect the
confidentiality of its communications can do so through the use of
technology such as scrambling or encryption.40
V. CONCLUSION
13. We hold that state and local laws that preclude the possession in
vehicles or elsewhere of amateur radio service
transceivers by amateur operators merely on the basis that the
transceivers are capable of the reception of public safety,
special emergency, or other radio service frequencies, the reception of
which is not prohibited by federal law, are
inconsistent with the federal objectives of facilitating and promoting
the amateur radio service and, more fundamentally,
with the federal interest in amateur operator's being able to transmit
and receive on authorized amateur service frequencies.
We therefore hold that such state and local laws are preempted by
federal law.
14. Accordingly, IT IS ORDERED that the request for a declaratory ruling
filed by the ARRL IS GRANTED to the extent
indicated herein and in all other respects IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
APPENDIX
Comments or reply comments to the Inquiry were submitted by the
following parties:
70 individual amateur operators, some of whom also operate GMRS
equipment or use scanning receivers
2 individual General Mobile Radio Service (GMRS) operators
13 individual scanning receiver users
American Radio Relay League, Inc. (ARRL)
Associated Public-Safety Communications Officers, Inc. (APCO)
Bellcore Pioneers Amateur Radio Association
Big Spring/Howard County, Texas; Hal Boyd, Emergency Coordinator
C. Crane Company
Capital Cities/ABC, Inc.
City of Martinez, California; Gerald W. Boyd, Chief of Police
Communications Electronics, Inc.
County of Sussex, New Jersey; John Ouweleen, Emergency
Management Coordinator
CO Communications, Inc.
Egyptian Radio Club, Inc.
Grove Enterprises, Inc.
Jessamine Amateur Radio Society
National Communications System (NCS), Department of Defense
Pasco County, Florida; Edith L. Sanders, Disaster Preparedness
Coordinator
Personal Radio Steering Group, Inc. (PRSG)
Radio Communications Monitoring Association (RCMA)
Riverside County R.E.A.C.T.
Seminole County, Florida; Kenneth M. Roberts, Emergency
Management Coordinator
State of Michigan, Department of State Police; David H. Held,
Director,
Communications Section
Tandy Corporation
Footnotes
1 The American Radio Relay League, Inc., Request for Declaratory
Ruling Concerning the Possession of Radio
Receivers Capable of Reception of Police or Other Public Safety
Communications (November 13, 1989) (ARRL
motion).
2 Transceivers are radio equipment capable of both transmission and
reception.
3 Public Notice, 5 FCC Rcd 1981 (1990). 55 Fed. Reg. 10805 (March
23, 1990). Comments were due by May 16,
1990, and reply comments by May 31, 1990.
4 6 FCC Rcd 1305 (1991) (Inquiry).
5 The scanner laws appear to be aimed at promoting the health,
safety, and general welfare of the citizenry.
6 See generally ARRL motion (citing N.J. Stat. Ann. §2A:127--4 (West
1985) (noting that a person is guilty of a
misdemeanor for possessing or installing a short-wave radio in an
automobile capable of receiving, inter alia,
frequencies assigned for police use unless a permit has been issued
therefor by the chief of the county or municipal
police wherein such person resides) and Ky. Rev. Stat. Ann. §432.570
(Michie/Bobbs-Merrill 1985) (noting that any
person who possesses a mobile short-wave radio capable of receiving
frequencies assigned for police use is guilty of a
misdemeanor , except that certain users such as radio and television
stations, sellers of the "scanner" radios, disaster
and emergency personnel, and those using the weather radio service
of the National Oceanic and Atmospheric
Administration are exempt, while amateur radio licensees are not
exempt).
7 See generally ARRL motion (regarding, inter alia, a Kansas City,
Missouri, scanner law). See also note 24, infra.
8 Id.
9 N.J. Stat. Ann. §2C:33-22 (West 1992).
10 Ky. Rev. Stat. Ann. §432.570(4)(c) (Baldwin 1992).
11 See note 22, infra.
12 ARRL Motion at 1, 3 and 5, "Most commercial Amateur
Radio VHF and
UHF transceivers...are incidentally
capable of reception (but not transmission) on frequencies
additional to those allocated to the Amateur Radio Service.
These frequencies are adjacent to amateur allocations. This is true
even though the equipment is primarily designed for
amateur bands, and results from the intentional effort to insure
proper operation of the transceiver throughout the entire
amateur band in question." Id, at 3.
13 Id. at 12.
14 For example, Amateur Radio licensees were widely recognized as
serving a vital role in providing communications
from devastated areas of South Florida during Hurricane Andrew and
its aftermath in 1992.
15 See generally House Comm. on the Judiciary, Electronic
Communications Privacy Act of 1986, H.R. Rep. No. 647,
99th Cong., 2d Sess, 42.
16 ARRL motion at 2 and 12. As of February 28, 1993, the
Commission's licensing database indicates that there are
598,656 amateur stations in the United States and its territories
and possessions.
17 Id. at 11.
18 A list of commenters is provided in the Appendix. Further, we
have accepted a comment
from Communications Electronics, Inc., which was filed one day late.
See generally 47 C.F.R. §1.46(b). We also have
considered 45 comments filed previously in this proceeding. See
Inquiry, 6 FCC Rcd at 1306-1308 (noting that all of
the filed comments support the ARRL motion). In addition, we
received comments from scanner (receive-only
equipment) users, who are not federal licensees and whose interests
have not been at issue in the proceeding.
19 Comment of State of Michigan, Department of State Police, at 2-3
(June 3, 1991). But see Reply Comments of
Personal Radio Steering Group of Ann Arbor, Michigan (July 8, 1991)
(noting that ARRL has not requested the
preemption of state and local laws that proscribe unlawful actions
taken by amateur licensees).
20 Comment of State of Michigan, supra, at 2-3. But see paragraph
12, n. 40, infra (noting the comments supporting
preemption filed previously in this proceeding by the Associated
Public Safety Communications Officers (APCO)).
21 See, e.g., Comment of John F. Fuhrman at 4 (April 29, 1991),
Comment of Joseph Reymann at 9, 14 (May 24, 1991),
and Comment of Mark D. Tavaglini at 3 (July 5, 1991).
22 See, e.g., Comment of ARRL at 12 & n.6, 14 (June 7, 1991);
Comment of Association of North American Radio
Clubs at 5 (April 30, 1990): Comment of Radio Communications
Monitoring Association at 5 (June 6, 1991). With
respect to scanner laws at the local level, ARRL has notes that it
is difficult to determine the precise number of such
ordinances. See Comment of ARRL at 12 (June 7, 1991); See also
Letter from ARRL to the Chief, Private Radio
Bureau, Federal Communications Commission, Washington, D.C. (May 26,
1993) (noting local scanner laws in effect
in Newton and Overland Park, Kansas, Jersey City, New Jersey, and
Kansas City, Missouri).
23 Comment of National Communications System at 2-4 (June 7, 1991).
24 Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699-705 (1984)
(quoting Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947)).
25 Fidelity Fed. Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141,
153 (1982) (quoting Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963); Hines v.
Davidowitz, 312 U.S. 52, 67 (1941)); see Capital Cities
Cable, Inc. v. Crisp, 467 U.S. at 705-09.
26 Fidelity Fed. Savings & Loan Ass'n v. de la Cuesta, 458 U.S. at
153.
27 Federal Preemption of State and Local Regulations Pertaining to
Amateur Radio Facilities, 101 FCC 2d 952,
959-60 (1985) (concerning Amateur Radio antenna restrictions)
(Amateur Preemption Order), See 47 C.F.R. §97.1.
See also Note. Federal Preemption of Amateur Radio Antenna Height
Regulation: Should the Sky Be the Limit? 9
Cardozo L. Rev. 1501, 1517-19 (1988), Note, Local Regulation of
Amateur Radio Antennae and the Doctrine of
Federal Preemption: The Reaches of Federalism, 9 Pac. L.J. 1041,
1055-60 (1978).
28 47 C.F.R. §97.1(b).
29 47 U.S.C. §157(a).
30 SENSE OF CONGRESS
Sec. 10
(a) The Congress finds that --
(1) more than four hundred thirty-five thousand four hundred radio
amateurs in the United States are licensed by the
Federal Communications Commission upon examination in radio
regulations, technical principles, and the international
Morse code;
(2) by international treaty and the Federal Communications
Commission regulation, the amateur is authorized to operate
his or her station in a radio service of intercommunications and
technical investigations solely with a personal aim and
without pecuniary interest;
(3) among the basic purposes for the Amateur Radio Service is the
provision of voluntary, noncommercial radio
service, particularly emergency communications; and
(4) volunteer amateur radio emergency communications services have
consistently and reliably been provided before,
during, and after floods, tornadoes, forest fires, earthquakes,
blizzards, train wrecks, chemical spills, and other
disasters.
(b) It is the sense of Congress that --
(1) it strongly encourages and supports the Amateur Radio Service
and its emergency communications efforts; and
(2) Government agencies shall take into account the valuable
contributions made by amateur radio operators when
considering actions affecting the Amateur Radio Service.
Federal Communications Commission Authorization Act of 1988. Pub. L.
No. 100-594, 102 Stat. 3021, 3025
(November 3, 1988); see also Joint Explanatory Statement of the
Committee of Conference on H.R. Conf. Rep. No.
386. 101st Cong., 1st Sess. 415, 433 (November 21, 1989), reprinted
in 1990 U.S. Code Cong. & Admin. News 3018,
3037 (amateur licensees exempted from new Commission-wide fees
program because "[t]he Conferees recognize that
amateur licensees do not operate for profit and can play an
important public safety role in times of disaster or
emergency"). Joint Explanatory Statement of the Committee of
Conference on H.R. Conf. Rep. No. 765, 97th Cong., 2d
Sess. 18-19 (August 19, 1982), reprinted in 1982 U.S. Code Cong. &
Admin. News 2261, 2262-63.
31 Id.
32 Reorganization and Deregulation of Part 97 of the Rules Governing
the Amateur Radio Services, Notice of
Proposed Rule Making, 3 FCC Rcd 2076, 2077, (1988), final rules
adopted in Report and Order, 4 FCC Rcd 4719
(1989), aff'd in Memorandum Opinion and Order, 5FCC Rcd 4614 (1990).
33 The rules, however, do prohibit amateur service transmissions
outside of the allocated amateur service bands. 47
C.F.R §97.307(b); Public Notice, Extended Coverage Transceivers in
the Amateur Radio Service, mimeo no. 4114
(July 21, 1987) (noting that "[i]t is a violation of the
Commission's regulations to...transmit on a frequency allocated to
a licensed service without the appropriate Commission-issued station
license.").
34 See para. 5, n.16, supra.
35 Cf. Capital Cities Cable, Inc. v. Crisp, 467 U.S. at 711 (state ban
on alcoholic beverages commercials preempted where
compliance by cable companies might result in deletion of out-of-state
programming, thereby frustrating federal goal of
promoting programming variety).
36 See Amateur Preemption Order, 101 FCC 2d at 960 (ordinances that
"operate to preclude amateur operations in their
communities are in direct conflict with federal objectives and must be
preempted").
37 We note that federal law prohibits unauthorized reception on
frequencies of certain radio services, e.g., cellular radio.
See Electronic Communications Privacy Act of 1986. §§101(a)(1),
101(a)(6), 101(c), 18 U.S.C. §§2510(1), 2510(10),
2510(16)(d), 2511(1). House Comm. on the Judiciary, Electronic
Communications Privacy Act of 1986, H.R. Rep. No. 647,
99th Cong., 2d Sess. 31-33, 37.
38 See Amateur Preemption Order, 101 FCC 2d at 960 (state and local
regulations regarding amateur antennas based on
health, safety or aesthetic considerations "must be crafted to
accommodate reasonably amateur communications and to
represent the minimum practicable regulation to accomplish the local
authority legitimate purpose").
39 The possibility that an affected licensee might obtain an additional
authorization or permit to operate under the state or
local law does not ameliorate the conflict, because the state or local
issuing authority might choose to deny the amateur
operator the permit, or charge a fee for the permit, or require the
permit of even a non-resident.
40 See Comments of APCO at 2-3 (May 16, 1990) (summarized in Inquiry, 6
FCC Rcd at 1306).
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