Can the FCC Search Your Home?
The FCC apparently thinks it can search your home without a warrant. Our own Prof. Kerr is skeptical.
Can the FCC Search Your Home?
The FCC apparently thinks it can search your home without a warrant. Our own Prof. Kerr is skeptical. |
Cheers,
Anyone else notice the logical flaw there? If they have no authorization from the FCC, they could not possibly have accepted the obligation that comes with it.
Now, maybe the FCC has the authority to go after pirate radio on its own initiative, but they certainly can't argue that a station that didn't submit to FCC licensing has consented to the terms of FCC licensing.
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The logical flaw is an artifact of the article.
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On reading the complete FCC 2005 form letter/FAQ, it becomes clear that the FCC recognizes the difference between licensed an unlicensed/unauthorized broadcast.
Government ownership of communications frequencies & control of associated devices/users is not a fundamental principle of human society... nor even of the United States.
Federal politicians blatantly seized vast control of the Radio-Frequency (RF) Spectrum with the non-constitutional Radio Acts of 1912 &1927. That 1927 usurpation established the "Federal Radio Commission" bureaucracy (morphed into the FCC). The airwaves were nationalized/socialized -- and declared public property under strict Commission control.
By Federal political custom, the Commerce-Clause trumps the 4th Amendment... and most everything else.
They're going for the "have their cake and eat it too" argument. If they have enough proof to show that a station is being operated at all, they also have enough proof to get a warrant to inspect the equipment. They're just not sure if they can convince a judge to issue a warrant in the first place, or they'd do so.
From the technical side, they're full of crap. They can easily detect frequencies used and power emitted from the curb. They can cross-index with their own licensing database to see if such a transmitter is authorized. There is zero need for them to enter a home or business to determine if the equipment is operating legally. The "we have to physically inspect" line is a blatant lie. They just don't want to take the time or trouble to convince a judge that their methods are sound.
Here's the really sketchy part: under the FCC's interpretation of this, they can take a fairly minor extra step and inspect any building or home containing a working RF transmitter, at any time the device is in operation. Which means that anyone running a Wi-Fi router could be subject to 24/7/365 "inspections" to see if their equipment is operating in accordance with FCC rules, under the same authorization (the 1934 Act).
Or, under a not-much-bigger stretch, anyone carrying a cellular phone into a building could be required to allow the FCC in for an "inspection" of their transmitting device.
The last step is to "inspect," without a warrant, any device covered under FCC regulations. Which includes ANYTHING that can emit radio frequencies. Like the computer you're reading this text on.
This is much like a package marked:
Cheers,
Of course on that day it will be impossible to actually operate equipment under FCC or any rules so it will be impossible for the FCC to have any reasonable grounds for a search. Small comfort perhaps in the circumstances...
Hard to challenge if they don't actually assert authority to enter or attempt to levy penalties against refuseniks.
There's probably no 4A violation for posting a notice with an incorrect claim of power on someone's door. (Paging OK, am I right here -- what would the FCC need to do to for a target to actually have standing?)
The first thing that jumps out is that this is intended to apply to businesses. The emphasis on "hours of operation" is interesting and seems to be premised on:
1) This being a business rather than residential situation.
2) There actually being someone around.
I see no requirement that someone ACTUALLY BE AROUND to give the FCC access. Therefore, if you put a transmitter in an unattended, locked facility and stream audio data to it, this would seem to preclude inspection.
It would seem to me that a court might be able to draw a line between professional radio broadcasting equipment (for example, the 100W transmitter) and consumer equipment which might require a warrant.
I am also imagining:
"You want to inspect our equipment? Ok. Please wait here for a moment."
five minutes later:
"Here is the equipment. I had to turn it off and disconnect it to bring it out to you. Feel free to inspect it. Also I don't have a 50 foot extension cord to plug it in here. Hope you brought one. Technically the front lawn is part of our premises, so this is still an on-premise inspection. Oh, and frequency has to be reprogrammed on power up....."
"We need to come into your hovel and inspect it to see if any of your equipment is operating illegally."
"I only have a dead wireless router, and I'm using it to prop up my bookshelf."
"But it's covered under FCC regs, and if you don't let us inspect it, we're going to fine you three pigs and a small goat."
(one inspection later)
"We're going to have to confiscate this router, and still fine you the pigs and the goat."
"What? Why?"
"Well, it MIGHT be transmitting. Better safe than sorry."
Given that said air burst nuke would be a substantial EM transmitter, I think there's going to be some serious scrutiny applied to the FCC wondering why they didn't regulate said nuke in the first place.
If the equipment operator refuses to allow inspection, the FCC agent will issue a Notice of Violation or an equivalent Warning Notice.
If the operator still refuses to allow inspections, the FCC can penalize him administratively (suspend whatever licenses he may have), or monetarily (civil fines). If that still doesn't work, the FCC agent can apply to the District Court for a search and seizure warrant. Such a warrant would be executed by armed U.S. Marshals, "using appropriate force," whether or not the occupant is present, and not the FCC agent,
No, this is an artifact of when people operated transmitters solely by speaking into them: excessive power CB transmitters, off-band amateur transmitters, pirate radio, etc.
"Let me in vountarily or you will be fined and delicensed" stretches the definition of "voluntarily".
Back in the dear dead days, there was "regulation" carried out by "commerce commissions," which required communications providers to supply "tariffs" to be "approved."
The FCC is not regulating that aspect of intrastate communication, only the technical part.
In a similar regulatory environment, if I see cop lights in the rear view mirror, I voluntarily pull over to the curb.
If they have no authorization from the FCC, they could not possibly have accepted the obligation that comes with it.
True, but you have to stop for the police even if you don't have a license. I assume they have some authority to do so.
...and when he asks you if he can search your car, the answer is "no." The police officer cannot then give you a ticket for "failure to allow search," or "might have had something in the trunk."
A more comparable example would be if a police officer shows up at your front door, wanting to find out if you have a bunch of illegal drugs in your bedroom. If he doesn't have a warrant, he can't fine you for refusing to allow him in.
Refusal to allow a search is NOT an admission of guilt.
Unless it's the FCC at the door.
Refusal to allow a search is not admission of guilt of having illegal narcotics in the premises.
Refusal to allow a search is admission of guilt in violation of the terms of your license that require you to submit to searches.
Sure. However, with the advent of the internet, you could buy a small house in an economically depressed place, put your transmitter there, keep it locked and unoccupied, and they would have to find YOU (when you could be halfway across the country) to let you in for the inspection. Or they could just get a search warrant.
But if I have no interest in having a license or in transmitting EM waves outside my house, I don't see what I'm admitting by refusing to let them in.
FCC’s Warrantless Household Searches Alarm Experts
...except that, according to the FCC, a license is not a requirement for allowing a search.
They claim they have:
"authority to inspect all radio installations associated with stations required to be licensed by any Act, or which the Commission by rule has authorized to operate without a license under section 307(e)(1), or which are subject to the provisions of any Act, treaty, or convention binding on the United States . . ."
They also state "Both licensees and non-licensees must allow an FCC Agent to inspect their radio equipment." A lot of non-licensed devices are in use - many more than the strictly-licensed ones like FM radio transmitters and TV stations.
Basically, that mean ANY electronic device which emits RF falls under FCC control. Such as a wireless router. Or a computer. The next time you buy a wireless router or a computer, look at all of the included documents, including the FCC certification (I have one for my infrared cable box remote, for example). Surprise!
Before the Telecom Act of 1934 was enacted, there was a big problem with people just firing up radio stations whenever they wanted to, interfering with other, established stations. That was what this Act was supposed to prevent.
Unfortunately, with the addition of things like Wi-Fi and cell phones, the FCC has a lot more to regulate - and a lot more power than they should have.
They do NOT need to randomly walk into someone's home or office to determine if they're running an illegal radio station. All they have to do is prove that a transmission is coming from a certain location, take it to a judge, get them to sign a warrant, and search the place legally...
Because if you have nothing to hide, any search is fine, right?
IOW, refusal to allow a search is always admissible evidence that you refused to allow a search. Whether or not you can be penalized for refusal to allow a search is a different matter entirely.
Oren, you may be describing the law correctly, but I think it bites that the FCC can demand entry to my house without a warrant, even if I have no wires or electricity at all, under threat of fines.
In other words, if the statute can override one of the Amendments to the United States Constitution...
Objection -- begging the question.
It is not established (although I concur with Orin that it's highly likely) that the statute does, in fact, conflict with the 4A.
I concur with the "should" prong of this sentence.
Well, I don't think the law is like that but that's entirely separate from the absurd statements that refusal to allow a search cannot be used as evidence of refusal to allow a search.
Sitting in my office right now I can see more than a dozen objects that would emit RF energy, either as their primary function (cell phone) or as a byproduct of their normal usage (computer monitor).
Unless you're amish nothing is safe.
You yourself just insisted that they can, through administrative means, force you to allow a search "if such a statute can legally create such an obligation."
"I have an idea. We want to search people's homes without their permission, and without having to go through all of that tedious 'warrant' stuff. We'll just write a law that allows us to search people's homes and businesses if we can pretend we have a statute to back it up."
In what way does this NOT conflict with the Fourth?
How about writing something into car registrations that forces "an obligation" for people to allow searches of their cars? Or extending the FCC regs on computers to force you to allow searches by the FCC and other law enforcement officials, at any time the computer is in use?
Seems to me that this sort of thing was recently rejected by the Supremes...
Oren channeling Orin, it seems.
In FCC actions actions against pirates of which I have been aware (as told me by a retired chief of an area enforcement division), they raided the transmitter premises only after considerable "dialog" with the transmitter operator (ie: C&D type letters which the operator replied to with nose thumbing, evasive action by moving transmitter around, etc.).
The pirate was operating what, if licensed, would be a class D FM station (ie: LEQ 100 Watts ERP). His operation was commercial. He was not just playing music for a few friends on his block. You can do that with a perfectly legal 100 milliwatts. The 1 millivolt/meter contour for 100 Watts ERP covers a very large area. He was interfering with licensed broadcasters over a huge part of a major metropolitan area. His transmissions were not "accidental".
They finally found and nailed him. They got warrants. He was convicted in federal court after a long trial involving "free speech" issues and got a wrist slap. One consequence of being convicted of operating an unauthorized radio transmitter on broadcast bands is loss of the privilege of obtaining a license. You have to work very hard to be convicted of that.
If they believe illegal operations are taking place, they can pursue the situation in administrative court (or criminal court for certain offenses, such as jamming emergency communications). Their technical means for determining violations are often enough to establish responsibility without a search.
"Bootleg" radio stations are a common target for FCC. They are found through direction finding. Then the problem becomes determining responsibility. There are other technical means for establishing responsibility beyond just DF. Once caught, bootleggers are normally administratively fined, and if they repeat, may be criminally prosecuted.
If you have a device you purchased and it is doing something illegal without your knowledge, you are not in jeopardy. If it is causing interference, you may be required (FCC letter or court order if necessary) to terminate the interference.
versus
FCC agents tell a judge that they observe a higher than normal RF emission and ask for a warrant. The judge will not send somebody else to measure these emissions. He will just take the agents' word for it, so unlike a probable cause type of thing he cannot look at the evidence and make his own judgement about whether the warrant should be granted. Therefore, a warrant requirement would only slow down the inspection, it would not protect anybody from any abuse. I don't see a big deal.
"nothing in this Act shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities,or regulations for or in connection with intrastate communication service by wire or radio of any carrier..."
This is because the States have control of intrastate communications. The FCC regulates common carrier radio transmitters, but not the content if it is intrastate.
See Cooley.
Beyond that the fed has no authority to regulate in this area as is evidenced by the 18th amendment. No power to regulate things so amendments delegating the power(s) are required.
Tiochfaidh ar la!
Not so. Ships could be searched without a warrant. Hence the origin of the automobile exception in Caroll.
As anther commenter on another thread said, you may have the right to free speech, but you don't have the right to listen.
I wanted to make a joke about the bastard child of Radley Balko and Christian Slater, by comparing administrative searches like this with the ones used when SWAT teams are deployed "to assist" alcohol inspectors, but the whole state vs. fed angle ruined it.
In it they say, among other things, that the inspector can look at your transmitter and paperwork but not inspect your cabinets, etc. According to the FAQ this is a civil proceeding that is inherent to your licensing or potential licensing if you are operating an illegal station.
I think that the definition of "station" is crucial here as it does not mean any RF emmitter but only the ones that the FCC regulates all of which have a warning on them, I think.
As an Amateur Radio operator I have to let the FCC inspectors in to see my logs and measure the output of my equipment as part of having the license.
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