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FCC Denies ARRL's Request for Declaratory Ruling

02/28/2010

In 2005, after the State of Florida adopted statutes aimed at pirate broadcasters and making it a felony to make a radio transmission without Commission authorization or to interfere with a licensed public or commercial radio station, the ARRL -- through General Counsel Chris Imlay, W3KD -- filed a Request for Declaratory Ruling (Request) with the FCC, seeking a declaratory ruling on portions of that statute. The ARRL argued that the Statute was written so broadly that one could infer that Commission-licensed Amateur Radio stations in Florida would be subject to felony prosecution if their transmissions interfered with broadcast or other radio receivers. In 2006, New Jersey adopted a similar statute and the ARRL's Request was modified to include that state. Five years and one day after the original Request was filed with the Commission, the FCC denied the Request.

In its Request, the ARRL stated that it was "unclear" if the Statute was written "to be as broad in its application as it reads, but it is clear that the Statute would create a third degree felony for the first offense of causing interference to licensed 'public or commercial' radio stations. The Statute is not limited to broadcast stations, though broadcast radio stations appear to be the focus of the protected class under this Statute. Nor is it clear what constitutes 'interference.' What is clear is that no radio transmissions, licensed or not, are permitted if they result in interference to public or commercial radio stations licensed by the Commission. Thus, it would appear that Commission-licensed Amateur Radio stations in Florida are subject to felony prosecution if their transmissions interfere with interference-susceptible broadcast or other radio receivers used in public or commercial radio stations."

Writing on behalf of the FCC, Mobility Division Deputy Chief Scott Stone noted that the Florida legislation has now been in effect for more than five years and the New Jersey legislation has been in effect for more than four years "and [the Commission has] received no reports of any amateur operators being prosecuted or threatened with prosecution under either statute. Given our broad discretion in determining whether to grant a petition for declaratory ruling, we decline to address the Request, as it does not currently appear that a declaratory ruling is necessary to 'terminat[e] a controversy or remov[e] uncertainty' with respect to ARRL's concerns." Stone also noted that the ARRL may file a new petition for declaratory ruling in the event of "changed circumstances."

Upon learning that the FCC had denied the Request, ARRL Chief Executive Officer David Sumner, K1ZZ, said he was "disappointed; however, it is significant that the denial is not based on the merits of our argument, but rather on the fact that in the intervening time there have been no reports of the statutes being used against radio amateurs. If either the Florida or the New Jersey statute were to be applied to a licensed amateur, our understanding is that the FCC would entertain a request to intervene, and we would expect them to do so."



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