Monitoring and the Law

Jorge Rodriguez

jorgerodriguez@monitoringtimes.com

New Florida Law Could Ensnarl Legal Operators

             Amateur radio operators as well as outlaw pirate radio broadcasters could face a third degree felony and a $5,000 fine in Florida under a new law which takes effect this month. Senate Bill 2714 relating to an unauthorized transmission to, or interference with, a public or commercial radio station, creates Florida Statute 877.27, which prohibits a person from making a radio transmission in Florida unless the person first obtains a license or an exemption from licensure from the Federal Communications Commission. The new law also prohibits an unlicensed radio or pirate radio transmission that interferes with a licensed public or commercial radio station.

            Specifically, a person may not make, or cause to be made, a radio transmission in Florida unless the person obtains a license or an exemption from licensure from the Federal Communications Commission under 47 U.S.C. s. 301, or other applicable federal law or regulations. A person also may not perform an act, whether directly or indirectly, to cause an unlicensed radio transmission to interfere with a public or commercial radio station licensed by the Federal Communications Commission or to even enable the radio transmission or interference to occur.

            In the wake of the new law, amateur radio operators in the state are concerned SB 2714 could be misconstrued to apply to anyone transmitting a signal, even an accidental interference, that affects public or commercially licensed broadcasters. This could include not only amateur radio operators, but anyone using the radio frequency spectrum.

            The hope of some is that the FCC may intervene and issue a declaratory ruling noting at that there is federal preemption in this area and that control of the airwaves is their exclusive domain.

Scanners in Virginia and West Virginia

             In our continuing coverage of states that have specific statutes on the use and possession of scanners, this month we present the Virginia and West Virginia Statutes relating to such use and possession. West Virginia’s brief law prohibits the use of what you hear over a police radio to further the commission of a crime. Virginia similarly prohibits the use of what you hear over a police radio if used to help commit a felony.

West Virginia Statutes §15-3-5.

             "Use of information obtained by interceptions of transmissions on department of public safety communications system forbidden; penalties.

            "No person shall intercept any message or transmission made on or over any communications system established by the department of public safety and use the information obtained thereby to aid, abet or assist in committing a crime, or in violating any law of this state, or use the same in a manner which will interfere with the discharge of the department's operations.

            "Any person who violates any provision of this section or of section two of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to confinement in the county jail for a period not to exceed one year or by a fine of an amount not to exceed five hundred dollars or by both such confinement and fine in the discretion of the court."

Code of Virginia § 18.2-462.1.

            "Use of police radio during commission of crime.

            "Any person who has in his possession or who uses a device capable of receiving a police radio signal, message, or transmission, while in the commission of a felony, is guilty of a Class 1 misdemeanor. A prosecution for or conviction of the crime of use or possession of a police radio is not a bar to conviction for any other crime committed while possessing or using the police radio."

Radar Detectors in Virginia

             While the days of the Virginia State Police sniffing out your FuzzBuster (tm) radar detector and seizing it are gone, it is still illegal to use radar detection devices in Virginia. Contrary to the state statute, some local government web sites such as the City of Fairfax advise that drivers may possess a detector even in a vehicle if the device has no power source and no one in the vehicle can access it. The actual statue, however, still prohibits possession in a motor vehicle, even if disconnected and not in actual operation.

§ 46.2-1079. Radar detectors

            "A. It shall be unlawful for any person to operate a motor vehicle on the highways of the Commonwealth when such vehicle is equipped with any device or mechanism, passive or active, to detect or purposefully interfere with or diminish the measurement capabilities of any radar, laser, or other device or mechanism employed by law-enforcement personnel to measure the speed of motor vehicles on the highways of the Commonwealth for law-enforcement purposes. It shall be unlawful to use any such device or mechanism on any such motor vehicle on the highways. It shall be unlawful to sell any such device or mechanism in the Commonwealth. However, provisions of this section shall not apply to any receiver of radio waves utilized for lawful purposes to receive any signal from a frequency lawfully licensed by any state or federal agency.

            "This section shall not be construed to authorize the forfeiture to the Commonwealth of any such device or mechanism. Any such device or mechanism may be taken by the arresting officer if needed as evidence, and, when no longer needed, shall be returned to the person charged with a violation of this section, or at that person's request, and his expense, mailed to an address specified by him. Any unclaimed devices may be destroyed on court order after six months have elapsed from the final date for filing an appeal.

            "Except as provided in subsection B of this section, the presence of any such prohibited device or mechanism in or on a motor vehicle on the highways of the Commonwealth shall constitute prima facie evidence of the violation of this section. The Commonwealth need not prove that the device or mechanism in question was in an operative condition or being operated."

Police Radio Jammer Gets 8 Years

             Twenty-six year old Rajib Mitra of Brookfield, Wisconsin, has been sentenced to eight years under new guidelines that provide for harsher penalties under the Federal Sentencing Guidelines that took effect in November 2003. In March, a jury convicted Mitra, in the case of the "magic radio," of repeatedly interfering with the emergency communications radio system of the Madison Police department last year.

            Federal District Judge John Shabaz could have added more time to the sentence for each of the times that Mitra interfered with the Madison police radio system, but he decided not to do so. The case is unique, since the United States charged Mitra's interference with the police communication system as interference with a critical infrastructure under the new post 9/11 guidelines and not under any of the traditional federal radio laws.

            During the sentencing last May, Judge Shabaz noted the government's evidence showed Mitra also caused 36 other instances of interference over a dozen times starting in January of 2003.

            Monitoring and the Law will have full coverage of how Mitra got himself into trouble with his scanners and radios in next month's issue.

Disclaimer: Information in this column is provided for its news and educational content only. Nothing here should be construed as giving specific legal advice. Persons desiring legal advice about their specific situation should consult an attorney licensed in their jurisdiction.