Federal Communications Commission
Washington, DC 20554
PR Docket 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:
1. On November 14, 1989, the American Radio Relay League, Incorporated
(ARRL), filed a Motion for a Declaratory Ruling1
requesting that the Commission preempt certain state statutes and local
ordinances affecting transceivers2
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 notice3
inviting comment on ARRL's request. In addition, on February 28, 1991,
we released a Notice of Inquiry4
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.
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.5
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.6 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.7 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.8
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repealed its statute and substituted a new, narrowly tailored scanner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.9
In addition, Kentucky amended its statute by adding an exemption applying
to amateur radio licensees.10 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.11
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.12
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,13
all commercially manufactured amateur service HF transceivers and the
majority of such VHF and UHF transceivers 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,14
and some require the mobile use of the amateur stations.15
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.16
ARRL states that, as a result of scanner laws, "several dozen instances
of radio seizure and criminal arrest [have been] suffered by licensed
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.18 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.19 Therefore, it concludes that "there
can be no beneficial need for amateur radio equipment to tune in public safety
channels."20 Of the remaining comments received, only a few address the technical and
marketplace questions described above. These comments are from individual amateur
operators 21 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.22 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.23
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."24 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."25
Furthermore, "[f]ederal regulations have no less preemptive effect
than federal statutes."26
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.27
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."28 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."29
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.30 Congress therein directed all
Government agencies to take into account the valuable contribution of amateurs when
considering actions affecting the amateur radio service.31 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.32
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.33
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 stations34 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 amateur
service operations, including mobile operations, and impermissibly encroaches on
federal authority over amateur operators.35 It conflicts directly with the federal
interest in amateur operators being able to transmit and receive on authorized amateur
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.37 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.38 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.39 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.40
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
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
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
Communications 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,
1 The American Radio Relay League, Inc., Request for Declaratory Ruling Concerning
the Possession of Radio Receivers Capable of Reception of Police or Other Public
Safety Communications (November 13, 1989) (ARRL motion).
2 Transceivers are radio equipment capable of both transmission and reception.
3 Public Notice, 5 FCC Rcd 1981 (1990). 55 Fed. Reg. 10805 (March 23, 1990).
Comments were due by May 16, 1990, and reply comments by May 31, 1990.
4 6 FCC Rcd 1305 (1991) (Inquiry).
5 The scanner laws appear to be aimed at promoting the health, safety, and general
welfare of the citizenry.
6 See generally ARRL motion (citing N.J. Stat. Ann. § 2A:127--4 (West 1985) (noting
that a person is guilty of a misdemeanor for possessing or installing a short-wave
radio in an automobile capable of receiving, inter alia, frequencies assigned for
police use unless a permit has been issued therefor by the chief of the county or
municipal police wherein such person resides) and Ky. Rev. Stat. Ann. § 432.570
(Michie/Bobbs-Merrill 1985) (noting that any person who possesses a mobile
short-wave radio capable of receiving frequencies assigned for police use is guilty
of a misdemeanor, except that certain users such as radio and television stations,
sellers of the "scanner" radios, disaster and emergency personnel, and those using
the weather radio service of the National Oceanic and Atmospheric Administration
are exempt, while amateur radio licensees are not exempt).
7 See generally ARRL motion (regarding, inter alia, a Kansas City, Missouri,
scanner law). See also note 24, infra.
9 N.J. Stat. Ann. § 2C:33-22 (West 1992).
10 Ky. Rev. Stat. Ann. § 432.570(4)(c) (Baldwin 1992).
11 See note 22, infra.
12 ARRL Motion at 1, 3 and 5, "Most commercial Amateur Radio VHF and UHF
transceivers...are incidentally capable of reception (but not transmission) on
frequencies additional to those allocated to the Amateur Radio Service. These
frequencies are adjacent to amateur allocations. This is true even though the
equipment is primarily designed for amateur bands, and results from the intentional
effort to insure proper operation of the transceiver throughout the entire amateur
band in question." Id, at 3.
13 Id. at 12.
14 For example, Amateur Radio licensees were widely recognized as serving a vital
role in providing communications from devastated areas of South Florida during
Hurricane Andrew and its aftermath in 1992.
15 See generally House Comm. on the Judiciary, Electronic Communications Privacy
Act of 1986, H.R. Rep. No. 647, 99th Cong., 2d Sess, 42.
16 ARRL motion at 2 and 12. As of February 28, 1993, the Commission's licensing
database indicates that there are 598,656 amateur stations in the United States
and its territories and possessions.
17 Id. at 11.
18 A list of commenters is provided in the Appendix. Further, we have accepted a
comment from Communications Electronics, Inc., which was filed one day late. See
generally 47 C.F.R. § 1.46(b). We also have considered 45 comments filed previously
in this proceeding. See Inquiry, 6 FCC Rcd at 1306-1308 (noting that all of the
filed comments support the ARRL motion). In addition, we received comments from
scanner (receive-only equipment) users, who are not federal licensees and whose
interests have not been at issue in the proceeding.
19 Comment of State of Michigan, Department of State Police, at 2-3 (June 3, 1991).
But see Reply Comments of Personal Radio Steering Group of Ann Arbor, Michigan
(July 8, 1991) (noting that ARRL has not requested the preemption of state and
local laws that proscribe unlawful actions taken by amateur licensees).
20 Comment of State of Michigan, supra, at 2-3. But see paragraph 12, n. 40, infra
(noting the comments supporting preemption filed previously in this proceeding by
the Associated Public Safety Communications Officers (APCO)).
21 See, e.g., Comment of John F. Fuhrman at 4 (April 29, 1991), Comment of Joseph
Reymann at 9, 14 (May 24, 1991), and Comment of Mark D. Tavaglini at 3 (July 5,
22 See, e.g., Comment of ARRL at 12 & n.6, 14 (June 7, 1991); Comment of
Association of North American Radio Clubs at 5 (April 30, 1990): Comment of Radio
Communications Monitoring Association at 5 (June 6, 1991). With respect to scanner
laws at the local level, ARRL has noted that it is difficult to determine the
precise number of such ordinances. See Comment of ARRL at 12 (June 7, 1991); See
also Letter from ARRL to the Chief, Private Radio Bureau, Federal Communications
Commission, Washington, D.C. (May 26, 1993) (noting local scanner laws in effect
in Newton and Overland Park, Kansas, Jersey City, New Jersey, and Kansas City,
23 Comment of National Communications System at 2-4 (June 7, 1991).
24 Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699-705 (1984) (quoting Rice
v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
25 Fidelity Fed. Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982)
(quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43
(1963); Hines v. Davidowitz, 312 U.S. 52, 67 (1941)); see Capital Cities Cable,
Inc. v. Crisp, 467 U.S. at 705-09.
26 Fidelity Fed. Savings & Loan Ass'n v. de la Cuesta, 458 U.S. at 153.
27 Federal Preemption of State and Local Regulations Pertaining to Amateur Radio
Facilities, 101 FCC 2d 952, 959-60 (1985) (concerning Amateur Radio antenna
restrictions) (Amateur Preemption Order), See 47 C.F.R. § 97.1. See also Note.
Federal Preemption of Amateur Radio Antenna Height Regulation: Should the Sky Be
the Limit? 9 Cardozo L. Rev. 1501, 1517-19 (1988), Note, Local Regulation of
Amateur Radio Antennae and the Doctrine of Federal Preemption: The Reaches of
Federalism, 9 Pac. L.J. 1041, 1055-60 (1978).
28 47 C.F.R. § 97.1(b).
29 47 U.S.C. § 157(a).
30 SENSE OF CONGRESS
(a) The Congress finds that --
(1) more than four hundred thirty-five thousand
four hundred radio amateurs in the United States are
licensed by the Federal Communications Commission
upon examination in radio regulations, technical princi-
ples, and the international Morse code;
(2) by international treaty and the Federal Communica-
tions Commission regulation, the amateur is authorized
to operate his or her station in a radio service of inter-
communications and technical investigations solely with
a personal aim and without pecuniary interest;
(3) among the basic purposes for the Amateur Radio
Service is the provision of voluntary, noncommercial
radio service, particularly emergency communications;
(4) volunteer amateur radio emergency communications
services have consistently and reliably been provided be-
fore, during, and after floods, tornadoes, forest fires,
earthquakes, blizzards, train wrecks, chemical spills, and
(b) It is the sense of Congress that --
(1) it strongly encourages and supports the Amateur Ra-
dio Service and its emergency communications efforts;
(2) Government agencies shall take into account the valu-
able contributions made by amateur radio operators when
considering actions affecting the Amateur Radio Service.
Federal Communications Commission Authorization Act of
1988. Pub. L. No. 100-594, 102 Stat. 3021, 3025 (November 3,
1988); see also Joint Explanatory Statement of the Committee of
Conference on H.R. Conf. Rep. No. 386. 101st Cong., 1st Sess.
415, 433 (November 21, 1989), reprinted in 1990 U.S. Code Cong.
& Admin. News 3018, 3037 (amateur licensees exempted from
new Commission-wide fees program because "[t]he Conferees
recognize that amateur licensees do not operate for profit and
can play an important public safety role in times of disaster or
emergency"). Joint Explanatory Statement of the Committee of
Conference on H.R. Conf. Rep. No. 765, 97th Cong., 2d Sess.
18-19 (August 19, 1982), reprinted in 1982 U.S. Code Cong. &
Admin. News 2261, 2262-63.
32 Reorganization and Deregulation of Part 97 of the
Rules Governing the Amateur Radio Services, Notice of Proposed Rule
Making, 3 FCC Rcd 2076, 2077, (1988), final rules adopted in Report and
Order, 4 FCC Rcd 4719 (1989), aff'd in Memorandum Opinion and Order,
5FCC Rcd 4614 (1990).
33 The rules, however, do prohibit amateur service
transmissions outside of the allocated amateur service bands.
47 C.F.R § 97.307(b); Public Notice, Extended Coverage Transceivers
in the Amateur Radio Service, mimeo no. 4114 (July 21, 1987) (noting that
"[i]t is a violation of the Commission's regulations to...transmit on a
frequency allocated to a licensed service without the appropriate
Commission-issued station license.").
34 See para. 5, n.16, supra.
35 Cf. Capital Cities Cable, Inc. v. Crisp, 467
U.S. at 711 (state ban on alcoholic beverages commercials preempted where
compliance by cable companies might result in deletion of out-of-state
programming, thereby frustrating federal goal of promoting programming
36 See Amateur Preemption Order, 101 FCC 2d at
960 (ordinances that "operate to preclude amateur operations in their
communities are in direct conflict with federal objectives and must be
37 We note that federal law prohibits unauthorized
reception on frequencies of certain radio services, e.g., cellular radio.
See Electronic Communications Privacy Act of 1986. §§
101(a)(1), 101(a)(6), 101(c), 18 U.S.C. §§ 2510(1), 2510(10),
2510(16)(d), 2511(1). House Comm. on the Judiciary, Electronic
Communications Privacy Act of 1986, H.R. Rep. No. 647, 99th Cong., 2d
Sess. 31-33, 37.
38 See Amateur Preemption Order, 101 FCC 2d at
960 (state and local regulations regarding amateur antennas based on
health, safety or aesthetic considerations "must be crafted to
accommodate reasonably amateur communications and to represent the
minimum practicable regulation to accomplish the local authority
39 The possibility that an affected licensee might
obtain an additional authorization or permit to operate under the
state or local law does not ameliorate the conflict, because the
state or local issuing authority might choose to deny the amateur
operator the permit, or charge a fee for the permit, or require the
permit of even a non-resident.
40 See Comments of APCO at 2-3 (May 16, 1990)
(summarized in Inquiry, 6 FCC Rcd at 1306).
NOTE: The ARRL supplies a PDF version
of this document as copied straight out of the FCC Record. Recommend
that the PDF version be the one that is printed out and placed into your glove
compartment. The version above is mainly as an online reading convenience.
If you are stopped, the PDF version will be "appreciated" a little better
because it comes straight from the Record. (With thanks to
John Hennessey/N1KB, of the Regulatory branch of the ARRL, for letting me
know about it. -Todd)
Cited as: FCC 93-410 (in the FCC Record).
Retranscribed by: Todd L. Sherman/KB4MHH
Page Created: December 16, 2002.
Last updated: March 28, 2011.
Mobile Scanner & RADAR-Detector Laws In The U.S.
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Gainesville, Alachua Co., Fla.
Copyright © 1995- by Todd L. Sherman/KB4MHH. All Rights Reserved.