Repeater 'Pest' Gets "No-Contact" Order - HamRadioNow (Promo)

Your Lawn, your Rules, but not Your Private radio spectrum.

 

So-called 'free speech' had used to be self-regulated by the fully justified expectation of a punch in the nose. And prior to then, settled with pistols at twenty paces.

Spouting off continually with open malice, then hiding behind the 1st Amendment is nothing short of conteptable cowardice.

 

If you check part 97.113 of the FCC's Rules and Regulations under Prohibited transmissions you'll find it includes obscene or indecent words or language and music. There is no room for tolerance or what you call "free speech" on the amateur air waves. The FCC does care and will respond however slow to that rule.

 

This is exactly correct. Free speech under the second element of the 1st amendment of constitution has time, place and manner restrictions (Cox v. New Hampshire). I have looked and there is no case law I can find that codifies amateur radio frequencies as a traditional public forum. This means that free speech can be chilled on amateur frequencies as a place restriction. Amateur radio is not the steps of city hall or a public sidewalk.

 

Broadcasting obscene content* is prohibited by law at all times of the day.

Indecent and profane content are prohibited on broadcast TV and radio between 6 a.m. and 10 p.m., when there is a reasonable risk that children may be in the audience.

For content to be ruled obscene, it must meet a three-pronged test established by the Supreme Court: It must appeal to an average person's prurient interest; depict or describe sexual conduct in a "patently offensive" way; and, taken as a whole, lack serious literary, artistic, political or scientific value.

Indecent content portrays sexual or excretory organs or activities in a way that is patently offensive but does not meet the three-prong test for obscenity.

Profane content includes "grossly offensive" language that is considered a public nuisance.

See: https://www.fcc.gov/consumers/guides/obscene-indecent-and-profane-broadcasts

*Obscene Content Defined by Supreme Court

The Miller test was developed in the 1973 case Miller v. California.

It has three parts:

1. Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

2. Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,

3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The FCC considers the word/phrase to be obscene only if all three conditions are satisfied.

 

Hi Tom:

But what do YOU consider inappropriate or obscene?

This really goes beyond freedom of speech. Yes, speech was used, as well as various other sounds to jam the repeater, but I don't think this is a FOS issue. It's an abuse of others and their property issue, first and foremost. That's how I'd argue it in court. IMO the examination of FOS would be secondary - because the jamming was not just "speech".

Jamming a repeater so others can't use it is abuse, whether or not the offender is singing the national anthem and inebriated at the time or whistling or moaning into the mic. And that's what this is about - abuse. As I've said - you know it when you've heard it on a repeater - we ALL have. And the derelict who did this repeatedly appears to have received the appropriate response through the legal system, which is the RIGHT of the complainant while observing the RIGHTS of the offender.

Since when is defending yourself and your LEGAL pursuits a bad idea? The alternative is to be defenseless - is that good?

Pretty much "End of Story", except perhaps for those thinking about doing something similar to what the offender did. They might have a real motive to argue "freedom of speech" on this issue.

And the OP did us ALL a favor by pointing out how to effectively fight this common attack on repeaters, through the legal system. Excellent!

This thread could "go on forever". But the court made it's decision, and IMO an obviously right one. Whatever we do or say here won't change that.

Brian - K6BRN

 

I agree. My outline of speech issues here differentiates freedom of speech on our own radios, versus our privileges while using someone elses property. Aside from being a LEO for 20 years, and helping the FCC shut down pirates in south Florida, I offered testimony in radio-related court issues on behalf of victims in 2007/2008 and again in 2018/2019.

The court option has always been available to us. This is not a novel concept, but it may be informative for others who are/were unaware of things like protection from abuse, and no contact orders, and harassment by communications statutes, which are available in most, if not all states, and have been for decades. Bottom line here is "your repeater/ your rules" and users are guests. Period.

 

Great point. If some ham wants to exercise his first amendment rights, he can do so on simplex.

 

I would respectfully disagree, and strongly so. Based on the above logic, not only is Mr. Drunken Reprobates speech constitutionally protected, but others are now constitutionally required to buy him a printing press, paper, and ink. That definition of "free speech" also means Drunken Reprobate has the right to put his choice of political lawn signs on any and all of his neighbors lawns. All those neighbors are constitutionally required not only to allow it, but to pay for those as well. Would you argue the First Amendment requires all those neighbors to just toughen up and ignore what has been forcibly placed on their own front lawns? No. Of course not. But that is exactly what you are arguing. A privately owned repeater is just that, a privately owned repeater. NO ONE has a "right" to transmit on someone else's repeater. But Drunken Reprobate can build his OWN repeater. He is free to purchase, install and maintain the equipment with his own funds. He is free to secure a location, complete all the red tape, and get his assigned frequency. After all of that, he has the first amendment right to transmit all the drunken nonsense he can muster, and no one can stop him. THAT is free speech. But Drunken Reprobate has ZERO right to interfere with anothers repeater, because he is then depriving THEM of THIER free speech rights. The bottom line is Drunken Reprobate is effectively jamming the repeater, intentionally. He should be treated no differently than any other intentional jammer.

 

Hi Tom:

Good to know the FCC IS doing its best and that you were a part of that. FB! Not an easy job.

Brian - K6BRN

 

In the "F around, Find Out" news, the follow up to the story of Mr. Materne: I looked up his case in the federal court system. He refused to pay the $18K, fine so the federal government is garnishing 25% of his wages as of a court order dated 3/10/2023.

So, this case at least is an example of the FCC going to the bitter end to make a ham miscreant pay.

 

The DoJ takes over all aspects of the case when it goes to court.

So, if found liable at trial (after all appeals) the DoJ will ask the court for permission to garnish wages, etc., if needed.

I believe JM quit his job and moved before any garnishment took place.

According to the process server, the home and job were vacated.

The FCC license has expired. He's still active on QRZ, so you could ask him, if you're curious.

See:

RIP! Ham Radio.

 

He have had our problems with non hams on a very busy local repeater. I think the problem might come from cheap boafengs. Hey, isn't that what cb is for. Cb is a ceasepool of idiots. The fcc gave up on that band years ago, they did away with licenses cuz it was to hard to control.

 

That's a big 10-4

 

Momma was right. Stupid is as stupid says. You're proof.