More FCC Bullying Behavior

In the past month, two of our clients have received verbal warnings from the FCC regarding offering for sale Connex and Galaxy 10 meter Amateur radios.  Some CB users buy Amateur equipment and modify it to work on CB frequencies.  One reason they do this is because CB users may transmit up to about 150 miles within the rules, but even using the maximum power allowed under the rules, CB radios, even under ideal conditions, will not transmit more than about 10 miles.  In some areas, you might not be able to transmit more than 3 miles.  Amateur radios have much more powerful transmitters, and when modified, can allow users to transmit on CB up to the 150 mile limit or even more.

Using a modified Amateur radio to transmit on CB is a violation of the rules.  However, rather than going after those who transmit on CB in violation of the rules, the FCC, back in 1996, decided it was easier just to declare, through the use of a Public Notice, that an Amateur radio which is "easy to modify" to work out of band is illegal.  The problem is that all Amateur radios can be modified to work out of band.  The FCC initiated this major change of the rules without going through the rulemaking process required under the Administrative Procedures Act.  If one reads the FCC's actual rules, you will not find one rule prohibiting the manufacturing or sale of Amateur radios which are easy to modify to work out of band.  Further, you will not find a rule defining what "easy to modify" means.  The FCC has, through an letter from its counsel, subsequently defined the terms as meaning "moving a jumper, throwing a switch or cutting a single wire."  However, the FCC has never incorporated the terms into a formal rule.

Why do I accuse the FCC of bullying these two CB shops?  Because the FCC knows that after the Public Notice was issued, the Connex and Galaxy radios were re-designed so that they are no longer "easy to modify" as defined by the FCC.  Not only that, the FCC knows that it lost litigation over the legality of the Connex radio in the Florida federal courts and it was forced to admit that the Galaxy radio was legal in proceedings brought in Texas.  Indeed, the court in Florida scolded the FCC for bringing the case in the first place, declaring that there was no reasonable justification for the lawsuit.

Instead of stopping with the false accusations of illegality, however, the FCC lower level employees continue to harass CB retail shops.  If the FCC is concerned with Amateur radios being used by non-licensed persons on CB, the remedy is simple.  Amend the rules to require an Amateur license to buy an Amateur radio.  Don't, however, harass dealers who are complying with the law and selling legal equipment.

FCC proposes rulemaking in Part 95

The FCC has proposed to changes the rules in Part 95, which governs the Personal Radio Services.  Proposed Rule Changes  Some of the rule changes are called for, such as those related to licensing of GMRS, since the license requirements are often ignored and the lack of a license really causes no harm.  Others proposed changes are likely to cause severe problems in the future, however.

Let's talk about CB radios.  Under the rules, you are not allowed to talk with stations more than 150 miles away.  Under the best of circumstances, however, one is lucky to be able to transmit more than 10 miles.  This is because CB radios are limited to 4 watts of power.  Most time, CB users cannot transmit more than 5 or 6 miles because of terrain and interference from other radio sources.  To get more distance, many CB users find ways to get more power, including using external amplifiers or more powerful radios intended for other services. 

The problem with an external amplifier is that CB frequencies are not pure.  The frequencies have harmonics or spurs at multiples of the main frequencies.  Some of the harmonic frequencies may be frequencies used by other services.  If the power on the CB is too high, those other services may be interfered with by the CB.  Thirty or forty years ago, it was not uncommon to hear CB discussions on one's TV set, since TV channel 2 was on the same frequency as the second harmonic on CB. 

Of course, nowadays TVs are digital and CBs don't interfere with one's TV.  There is no need to reduce the power on CBs because interference is almost impossible.  Rather, since users are allowed to transmit up to 150 miles, but cannot transmit, in most cases, even one tenth of the allowed distance, the power allowed on CB should be increased.  The rules could be amended to require a purer signal on CB.  Filters could be required which would reduce the power of the second harmonic further, so even if transmit power was increased there would be no interference caused by the harmonics.  If power levels were increased at the manufacturing level, there would be no need for external add on amplifiers, which are the main source of interference to other services.

Another way in which CB users try to talk farther is by using Amateur equipment on CB frequencies.  The CB band is in between two Amateur bands (the ten and twelve meter bands).  Amateur radios can be 200 times more powerful than CB radios.  By modifying Amateur equipment, a relatively easy task for almost all Amateur radios, CB users can talk on CB with hundreds of watts of power.  The main problem with CB users using Amateur radios is that sometimes the CB users try to use the radios on the Amateur bands.  This causes friction with licensed Amateur operators, as they tend to be extremely protective of their service.  By increasing the power of standard CBs there would be less likelihood that the CB users would transmit out of band. 

The FCC has the right idea to amend the rules.  There is no question the rules are disorganized and outdated.  However, the FCC has not proposed adopting rules that are practical or enforceable.  If the rule making proposal goes through, its just going to lead to trouble and more business for attorneys like me who represent clients in trouble with the FCC.

Class Actions Lawsuits Abound

We previously blogged about the conduct of Google logging MAC addresses and SSIDs for its commercial use.  Such conduct violates 47 U.S.C. §605 which prohibits the republication or use of intercepted radio communications.  A wireless router's broadcast is a radio communication under FCC rules, and thus falls within the protection afforded under 47 U.S.C. §605.  Well, the class action lawsuits have been filed.  Reportedly eight are now pending in various parts of the country, and Google is trying to have all transferred to the Northern District of California, which is Google's home base.  Having handled a number of matters in that district, in my opinion it is a good move for all concerned.  The judges there handle a lot of patent litigation and the magistrates are all top notch, especially with respect to technical issues.  I suspect that the ultimate outcome, if plaintiff's attorneys play their cards right, will not be as favorable as Google anticipates.

I previously mentioned that Wigle is violating the statute by posting SSIDs on a map which users can browse to locate SSIDs.  Well, it seems that Skyhook Wireless is also creating a database of logged SSID and MAC addresses.  Skyhook is apparently using it for commercial applications, like Google.  Don't be surprised if the next class action lawsuit includes Wigle and Skyhook.