U.S. States to Enforce FCC Rules?

[Rich]

Here is a link to an interesting post on the subject of the constitutional authority of U.S. States to pursue legal action against “pirate” radio operators.

http://lists.radiolists.net/pipermail/broadcast/2016-July/169555.html

[ArtisanRadio]

It is an interesting read, particularly since in Canada exactly the opposite is true – Provincial law trumps Federal law in most cases.

I wonder if this means that it’s unconstitutional for the FCC to ask others (i.e., states, broadcasters, local governments, etc.) to enforce the laws against pirate radio activity?

[radio8z]

Maybe its the browser here but it would take a 25 foot wide monitor to read the article linked.  It did appear to cite the supremecy clause of the Constitution.

But then there is this:

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Which applies?

 

[Rich]

Radio8Z posted:  Maybe its the browser here but it would take a 25 foot wide monitor to read the article linked. …

Thanks for pointing this out.

There are ways to convert such text formats to be compatible with the system/display in use.

Below is the text of that original link which hopefully will be easier to read/follow on this website, even though some format attributes are not present.

 

 >From Wikipedia, Supremacy clause.  Not always the most accurate reference source, but this entry is correct.

The Supremacy Clause of the United_States_Constitution (Article_VI,_Clause_2) establishes that the Constitution, federal_laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land.[1] It provides that state_courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied. Even state_constitutions are subordinate to federal law.[2] In essence, it is a conflict-of-laws rule specifying that certain national acts take priority over any state acts that conflict with national law. In this respect, the Supremacy Clause follows the lead of Article XIII of the Articles_of_Confederation, which provided that “Every State shall abide by the determination of the United_States_in_Congress_Assembled, on all questions which by this confederation are submitted to them.”[3] A constitutional provision announcing the supremacy of federal law, the Supremacy Clause assumes the underlying priority of federal authority, at least when that authority is expressed in the Constitution itself.[4] No matter what the federal_government or the states might wish to do, they have to stay within the boundaries of the Constitution. This makes the Supremacy Clause the cornerstone of the whole American_political_structure.

The Supreme Court has also held that only specific, “unmistakable” acts of Congress may be held to trigger the Supremacy Clause. Montana had imposed a 30 percent tax on most sub-bituminous_coal mined there. The Commonwealth_Edison_Company and other utility_companies argued, in part, that the Montana tax “frustrated” the broad goals of the national energy policy. However, in the case of Commonwealth_Edison_Co._v._Montana, 453 U.S. 609 (1981), the Supreme Court disagreed. Any appeal to claims about “national policy”, the Court said, were insufficient to overturn a state law under the Supremacy Clause unless “the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained”.[9]
However, in the case of California_v._ARC_America_Corp., 490 U.S. 93 (1989), the Supreme Court held that if Congress expressedly intended to act in an area, this would trigger the enforcement of the Supremacy Clause, and hence nullify the state action. The Supreme Court further found in Crosby_v._National_Foreign_Trade_Council, 530 U.S. 363 (2000), that even when a state law is not in direct conflict with a federal law, the state law could still be found unconstitutional under the Supremacy Clause if the “state law is an obstacle to the accomplishment and execution of Congress’s full purposes and objectives”.[10] Congress need not expressly assert any preemption over state laws either, because Congress may implicitly assume this preemption under the Constitution.

My comment:  The FCC has exclusively acquired jurisdiction over radio waves, both intentional and unintentional radiators, as explicitly defined in federal law.  Nothing a state enacts, even when helpful and in concert with federal law, is permitted, and the federal law supersedes state law. Re: the California marijuana battles, and more recently, Arizona’s laws against illegal immigration.  Although crafted to be entirely duplicative of federal law, the current administration enjoined the state from enforcement.

There doesn’t have to be a specific case involving pirates to set precedent, that has already been amply done, as in the cases above.

From: Rob Landry <011010001 at interpring.com>

On Mon, 25 Jul 2016, Mike Vanhooser wrote:

> Totally unconstitutional, radio/TV transmission is under exclusive
> jurisdiction of the federal government/FCC, federal law will have to change
> first before any state can have concurrent jurisdiction.

Can you cite a case in which a federal court has found an anti-pirate law
unconstitutional?

Which article of the Constitution was the anti-pirate law held to violate?

Rob

__________

(Radio8Z continues)

But then there is this:

Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.  Which applies?

__________

Would the answer to that question be found in the first paragraph of the original quote above in this post?

[mram1500]

Please define “pirate” radio operator.  Arrggghhh…

[Rich]

MRAM1500:  Please define “pirate” radio operator.

A clear/unambiguous definition of a pirate operator is anyone operating an unlicensed radio station that is non-compliant with the rules of the regulatory agency governing them.

[radio8z]

for the “translation”.  I am not interested in trying to reformat things which were posted as almost unreadable but am glad you did.

I am also not interested in debating the finer points of this kind of law.  Being not a legal professional nor having any authority of same it is a waste of my time.

Neil

 

[mram1500]

Rich said:  “A clear/unambiguous definition of a pirate operator is anyone operating an unlicensed radio station that is non-compliant with the rules of the regulatory agency governing them.”

Now, what do you call a licensed radio operator that is non-compliant with the rules of the regulatory agency governing them?

[Rich]

MRAM 1500 asks: …what do you call a licensed radio operator that is non-compliant with the rules of the regulatory agency governing them?

In the US, still just a licensed operator/operation that is subject to FCC sanctions, if such non-compliance is verified by the FCC.

In extreme cases for repeated and/or ignored lack of compliance, their operators may lose their FCC station license, as well as being levied rather hefty fines.

If they ignored that loss of license and continued to operate with facilities not compliant (even) with Part 15, then they would meet the definition of a pirate.

[mram1500]

So both licensed and unlicensed radio operators (actually it’s the transmitter which is unlicensed) who are non-compliant with the rules of the regulatory agency governing them are subject to FCC sanctions (in the US) for such non-compliance.

But one is a “Pirate” for operating an unlicensed transmitter.

Thanks Rich.  I guess it’s a subjective point of view.

[Rich]

MRAM 1500 wrote: … But one is a “Pirate” for operating an unlicensed transmitter. …

Clarification:

Transmitters are not licensed — either for use by Part 15 operators, or by licensed broadcast stations.

In the case of licensed AM/FM broadcast stations, that license is issued to the successful legal entity that applied for it, after proving that their installation complied with the technical details given in its FCC construction permit.

Unlicensed Part 15 AM/FM stations/operators may use either a transmit system certified by its manufacturer under Part 15, or one of their own design and construction.

But in all cases, such operators are responsible to meet Part 15 in the operation of such stations.

[mram1500]

Ok, transmitters aren’t licensed, operators are unless, in our case, they are operating under Part 15 rules.

Now, let’s consider unintentional radiators which are governed in the US by FCC Part 15 rules. 

Since those devices are Part 15 devices for which no licensed is required to operate, would the operator of let’s say a CFL or garage door opener be classified as a “Pirate” operator if said device was non-compliant based upon your definition of a “Pirate”? 

Would an NOUO be in order?  Whether intentional or unintentional non-compliance under Part 15 rules would be the same, no?

[Rich]

Ok, transmitters aren’t licensed, operators are unless, in our case, they are operating under Part 15 rules.  etc

_______

The use of intentional radiators in the AM/FM broadcast bands in the US always is subject to the applicable sections of Part 15.

The legal use of systems in other applications/bands using intentional/unintentional radiators is another matter, and not germane.

[mram1500]

Why would it not be relevant to the subject under consideration? 

Someone operating a non-compliant Part 15 device whether intentionally or unentintionally would be a “Pirate” as no license is required to operate.

So based on your statement, unintentional operation which is non-compliant would not be classified as “Pirate” operation.

[Carl Blare]

The man claiming to be a man named “Rich” says: “another matter, and not germane.”

So, you tie it to Germans.

I knew this from the beginning.

[Author]

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