Before the
Federal Communications Commission
Washington, D.C. 20554



PR Docket No. 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; 
Released: September 3, 1993

     By the Commission:

I. INTRODUCTION

     1. On November 14, 1989, the American Radio Relay League, Incorporated 
(ARRL), filed a Motion for a Declaratory Ruling requesting that the 
Commission preempt certain state statutes and local ordinances affecting 
transceivers 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 inviting
comment on ARRL's request. In addition, on February 28, 1991, we released a
Notice of Inquiry 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. 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. 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. 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.

     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repealed its statute and substituted a new, narrowly tailored scanner law 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. In addition, Kentucky amended 
its statute by adding an exemption applying to amateur radio licensees.
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.

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. 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, all commercially manufactured amateur 
service HF tranceivers and the majority of such VHF and UHF tranceivers
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, and some require the
mobile use of the amateur stations. 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. ARRL states that, as a
result of scanner laws, "several dozen instances of radio seizure and criminal
arrest [have been] suffered by licensed amateurs."

     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. 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. Therefore, it concludes that "there can be
no beneficial need for amateur radio equipment to tune in public safety
channels." Of the remaining comments received, only a few address the
technical and marketplace questions described above. These comments are from
individual amateur operators  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. 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. 

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."  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."

Furthermore, "[f]ederal regulations have no less preemptive effect than 
federal statutes."

     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. 


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." 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."
     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. Congress
therein directed all Government agencies to take into account the valuable
contribution of amateurs when considering actions affecting the amateur radio
service. 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.

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.

     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 stations 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 amateurs service operations, including mobile operations,
and impermissibly encroaches on federal authority over amateur operators. It
conflicts directly with the federal interest in amateur operators being able to
transmit and receive on authorized amateur service frequencies.
     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. 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. 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. 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.

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
Communicatons 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