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New York Judge Declares Amateur Radio Is Not a Cell Phone

09/10/2010

In many states and localities, it is illegal to talk on a cell phone (without a hands-free device) while behind the wheel -- doing so can result in a ticket and possibly a large fine. But on May 30, 2010, when a New York ham was talking on his mobile rig, he didn’t think he was doing anything wrong. Except that the officer who pulled him over and cited him with a $100 fine didn’t quite see it that way.

Steve Bozak, WB2IQU, of Clifton Park, told the ARRL that when he was pulled over while driving to Troy -- about 16 miles away -- he assured the officer that he was not speaking on a cell phone, but on his handheld transceiver. But according to Bozak, the officer said “it was all the same to him.” So Bozak decided to fight the ticket in court.

“Honestly, it’s not the fine or the ticket, but that all the other hams who use mobile radios have to hide the fact we are mobile in Troy,” he told the ARRL just days after he was cited. “I will do my best to settle this politely and correctly, for all of the ham community. So I will follow the course and have my day in court, to ‘tell it to the judge.’ This matter affects 38,000 hams in New York State.”

Unfortunately, when Bozak had his day in court for a pre-trial conference, the prosecutor refused to dismiss the case. But he didn’t give up and took his case to City Court where, on September 8, where at the request of Bozak's attorney -- ARRL Volunteer Counsel (VC) Jeremy, Rase, KC2JRD -- the judge dismissed the case in Bozak’s favor. Bozak argued that his use “of a handheld Amateur Radio does not fit the definition of a mobile telephone, and as such, the present charge should be dismissed.” The prosecutor’s office did not submit a response in opposition.

Saying that New York’s Vehicle and Traffic Law defines a “Mobile Telephone” as a “device used by subscribers and other users of wireless telephone service to access such service,” and that a “Wireless Telephone Service” is defined as “two-way real time voice tele-communications service that is interconnected to a public switched telephone network and is provided by a commercial mobile radio service,” the judge decided that Bozak’s handheld transceiver did not fit that description.

“A review of 47 C.F.R.§20.3 reveals that Citizens Band Radio Service is defined under private mobile radio service not commercial mobile radio service,” the decision read. “Therefore, the Court finds that the use of an Amateur Radio device does not fit the definition of a mobile telephone as defined under the Vehicle and Traffic Law” As such, the judge dismissed the case in Bozak’s favor.

“While the court cited the Citizens Band Service instead of the Amateur Radio Service, the ruling very is favorable to amateurs on the precise point of law raised,” said ARRL Regulatory Information Manager Dan Henderson, N1ND. “The principle of law is spot on. This is a great ruling in New York and exactly what we had thought would happen.”



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