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Texas HAMS Alert - SB 43 Pending in Texas Senate

Discussion in 'Amateur Radio News' started by KA5ETX, Jan 11, 2019.

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  1. WG4O

    WG4O Ham Member QRZ Page

    One might pause and reflect before stating what states can and cannot do. Is it legal to LISTEN to anything while in a personal vehicle? The immediate answer is yes. But wait, Virginia and Washington DC ban the use of Radar Detectors. Check it out:
    https://www.ratedradardetector.org/blog/is-it-illegal-to-have-a-radar-detector/. I understand your feelings that the FCC has granted you a license. I understand it is your personal vehicle. But remember, it is privilege, granted by the state to drive on the roadway. The state can restrict that privilege. It's the golden rule, the one with the gold makes the rules.
     
  2. KV6O

    KV6O Ham Member QRZ Page

    The Brief you are quoting is about States and "Scanner" laws. Here's a little more of it, including the conclusion:

    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


    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.

    This has NOTHING to do with operating a radio while driving. The FCC ruling is very specific about what is not allowed, and it has to do with POSSESSION in a vehicle or elsewhere. Not operation while driving, which is a states right to regulate (the driving part).
     
    WA7PRC likes this.
  3. WG4O

    WG4O Ham Member QRZ Page

    Exactly my point.
     
  4. K4KWH

    K4KWH Ham Member QRZ Page

    And therefore, when a state attempts to prevent the "use of mobile stations to the fullest extent permitted under the COMMISSION'S RULES" either by the threat of ticket, seizure, by a state law that, in effect, overrides the Commission's statutory authority, attempts to place blame, cause, or effect upon driving that that activity does not cause, taken as a separate and apart activity from driving, the state is, then, in violation of existing Federal laws that determine what activities shall be permitted under the historical, current and statutory regulations governing the Amateur Service. This is to include the activation, keying, manipulating of mikes and controls of a transmitter/receiver, none of which can be shown to materially affect the activity of driving.
    All such activities must be done in order to "permit the use of one's mobile station TO THE FULLEST EXTENT PERMITTED BY HIS LICENSE!"

    It is a fact that the use of a two way radio has little to no effect upon driving, and taken as such, and as a separate activity, the state should have no authority over it. IF a driver is determined to have driven in a distracted manner, then he should be cited FOR that infraction, and that infraction alone, regardless of the activity that led to it. Using "crutches" or "lead-ins" to claim that the person was guilty of "distracted driving" because of that activity alone, that, again, does NOT contribute to distraction, is simply a weapon that could needlessly be used to milk fines out of amateurs. That is the reason that I have such an attitude of contempt when a jurisdiction hypocritically writes me a ticket in one breath, then in the next, has the gall to plead for my help in the next for an activity that, according to Federal law, I have the privilege to do so. The way I see it, the only way the states can actually enact such laws is for 1) too-passive people roll over and play dead, and 2) with FCC's cooperation to change their rules and Part 97 to allow it,
     
  5. KV6O

    KV6O Ham Member QRZ Page

    Show me, where, exactly under the Commission's Rules it states this?

    You have your opinion. When, and if you're cited for violating the pertinent traffic code, tell it to the Judge. See how that works out for you.
     
  6. K4KWH

    K4KWH Ham Member QRZ Page

    One can simply refer back to the very post YOU made. YOU quoted it in YOUR post. "...........................such laws PREVENT amateur operators from using their mobile stations TO-THE-FULLEST-EXTENT PERMITTED UNDER THE COMMISSION'S RULES." And such local proposed laws now pose the SAME threat to PREVENT the FULLEST USE of their MOBILE STATIONS. That sentence indicates that it is FCC's intent (and Congress') that amateurs be able to (1. Transport their mobile stations across state and local boundaries for the purpose of transmitting and receiving on their authorized frequencies. In order to do that , they must manipulate the controls of their radios including microphones, etc. The entire paragraph indicates FCC's support for that FULL use. If local bubbas can merely cite amateurs for operating their stations AS INTENDED by FCC, it is then simply a weapon to use to milk/bilk fines out of lawfully licensed people.

    In any forthcoming positive ruling, I would expect that FCC would make the assertion that two way radio operation is a separate and apart activity that has little to do with driving, and therefore, the state has no need to regulate something that has no impact on driving. I would expect that FCC would also assert its traditional, statutory oversight over communications technology, including all forms of two way radio, and until the state could PROVE a connection between
    two way radio and distracted driving, they won't be allowed to do it. That's what I am hoping for, and I think we will get it! A "traffic code" has nothing to do with operating a two way radio.
     
  7. KV6O

    KV6O Ham Member QRZ Page

    The commissions rules do not address driving a motor vehicle. That's what's at issue here. There are a whole bunch of things you can't do while driving, but that are perfectly OK when you're NOT driving.

    The government can't tell you that you can't eat food, but they CAN tell you that you can't eat a cheeseburger while driving - that's distracted driving. You can pull over, stop at a restaurant, etc., and eat a meal.

    I don't believe that having a simplex radio conversation is any more dangerous than talking to a passenger, but the States get to decide that, not the FCC. The FCC can weigh in with research, evidence, opinions, etc., but they don't make State law.
     
  8. N5EQY

    N5EQY Ham Member QRZ Page

    Simple answer to the entire argument is that: Texas owns the roads in Texas and Texas drivers that use any device while driving that requires manual manipulation to converse while vehicle is in motion is "distracted Driving". I dont know about bluetooth 'hands free' cell phone use while driving which i use. liberal lawmakers always manage to screw up everything they get close to because they cater to a minority that pretend to "do good things"... NOT !
     
  9. K4KWH

    K4KWH Ham Member QRZ Page

    No it isn't "distracted driving" if the device has little or no impact on driving. And a two way radio has that little or no impact. I would surmise that the Texas Highway Patrol, Texas Rangers, EMS gets a "pass", right--as is the case in other states that enact such laws. IF the use of a two way radio IS "distracted driving", i'e. dangerous, then the state has no business doing it either. And don't tell me "they are 'trained'" to do it, either, BULL****!:rolleyes: "Y'all do as ah say, boy-ah, not as ah do, ya heah?" A hypocrite is STILL a hypocrite, and if it is dangerous for ordinary radio ops, then its just as dangerous as it is for fat bellied bubba cop!:mad::p And it is NOT dangerous, and does not cause accidents; it is the CELL PHONE that impacts driving, NOT the two way radio! Regulate that which IS causing the trouble, NOT that that doesn't!:)
     
  10. KC4LGM

    KC4LGM Premium Subscriber QRZ Page

    Yea...Congress is a great example.......
     
  11. K4KWH

    K4KWH Ham Member QRZ Page

    AT least Congress made it clear that they support 91-36 and the ability of hams to "transport and operate their radios on authorized frequencies to the fullest extent". They get it right...............sometimes.;)
     
  12. KG5HKQ

    KG5HKQ Ham Member QRZ Page

    Senate Bill SB 43 Restricting Mobile Communications - Relating to the use of a wireless communication device while operating a motor vehicle has been assigned to a committee for consideration. It is this committee’s purview whether the bill gets amended - dies in committee - or gets passed to the floor for complete Senate consideration. The first opportunity to change the bill to where it is not destructive to Amateur Radio and our function of always being prepared to perform emergency communications for our served agencies is with this committee. Every Senator on this committee needs to be made aware of the detriment this bill would present if it becomes law as it’s currently written! Our ability to provide daily checks for operability and our ability to train in live programs would be eliminated.


    The bill has been assigned to the Senate Committee on State Affairs (C570)

    Clerk: Katherine Engelauf

    Legislature: 86(R) - 2019 Phone: (512) 463-0380

    Appointment Date: 1/9/2019 Room: SHB 380



    Chair: Sen. Joan Huffman

    District: 17

    Capitol Office: CAP 1E.15

    Capitol Address: P.O. Box 12068, Capitol Station

    Austin, TX 78711

    Capitol Phone: (512) 463-0117

    District Address: P.O Box 541774

    Houston, TX 77254

    District Phone: (281) 980-3500



    Vice Chair: Sen. Bryan Hughes

    District: 1

    Capitol Office: EXT E1.708

    Capitol Address: P.O. Box 12068, Capitol Station

    Austin, TX 78711

    Capitol Phone: (512) 463-0101

    District Address: 100 Independence Place, Suite 301

    Tyler, TX 75703

    District Phone: (903) 581-1776



    Sen. Brian Birdwell

    District: 22

    Capitol Office: EXT E1.706

    Capitol Address: P.O. Box 12068, Capitol Station

    Austin, TX 78711

    Capitol Phone: (512) 463-0122

    District Address: 900 Austin Ave, Suite 500

    Waco, TX 76701

    District Phone: (254) 772-6225



    Sen. Brandon Creighton

    District: 4

    Capitol Office: EXT E1.606

    Capitol Address: P.O. Box 12068, Capitol Station

    Austin, TX 78711

    Capitol Phone: (512) 463-0104

    District Address: 350 Pine Street, Suite 1450

    Beaumont, TX 77701

    District Phone: (409) 838-9861



    Sen. Pat Fallon

    District: 30

    Capitol Office: CAP GE.7

    Capitol Address: P.O. Box 12068, Capitol Station

    Austin, TX 78711

    Capitol Phone: (512) 463-0130

    NO DISTRICT ADDRESS OR PHONE NUMBER LISTED ON TEXAS LEGISLATURE ONLINE



    Sen. Bob Hall

    District: 2

    Capitol Office: EXT E1.610

    Capitol Address: P.O. Box 12068, Capitol Station

    Austin, TX 78711

    Capitol Phone: (512) 463-0102

    District Address: Alliance Building #2, 6537 Horizon Road, Suite B-1

    Rockwall, TX 75032

    District Phone: (972) 722-3131



    Sen. Eddie Lucio, Jr.

    District: 27

    Capitol Office: CAP 3S.5

    Capitol Address: P.O. Box 12068, Capitol Station

    Austin, TX 78711

    Capitol Phone: (512) 463-0127

    District Address: 7 North Park Plaza

    Brownsville, TX 78521

    District Phone: (956) 548-0227



    Sen. Jane Nelson

    District: 12

    Capitol Office: CAP 1E.5

    Capitol Address: P.O. Box 12068, Capitol Station

    Austin, TX 78711

    Capitol Phone: (512) 463-0112

    District Address: 1225 S. Main St., Suite 100

    Grapevine, TX 76051

    District Phone: (817) 424-3446



    Sen. Judith Zaffirini

    District: 21

    Capitol Office: CAP 1E.14

    Capitol Address: P.O. Box 12068, Capitol Station

    Austin, TX 78711

    Capitol Phone: (512) 463-0121

    District Address: P.O. Box 627

    Laredo, TX 78042

    District Phone: (956) 722-2293
     
  13. KF5OXQ

    KF5OXQ Ham Member QRZ Page

    The Texas lege will happily lay more and more laws on us. In TX, if something is not specifically permitted it may well be forbidden. TX cops are not necessarily versed in law, you will tell it to the judge after buying a lawyer/mouthpiece. We have distracted driving laws but the Lege will always toss citizens under the bus to show that it is 'doing something'.
    When the Lege is in session you must pay attention, especially as session end nears, when all kinds of bad things find their ways through the maze and to the gov's desk.
     
  14. K4KWH

    K4KWH Ham Member QRZ Page

    I really believe Texas will have a problem with this for several reasons. 1). Off the bat, it supercedes Federal law when it attempts to restrict. or prohibit the act of operating a *licensed* two way radio. 2. There is no evidence that that act alone has any affect upon "distracted driving". 3) Texas itself must apply for license FROM the Federal Government and must follow FCC's rules FOR their service.
    Therefore, they are licensed on an EQUAL basis from the SAME enforcement agency as the individual licensee.

    To be sure, a state CAN control any activities that bear upon distracted driving: eating, reading a book, swerving, shaving, using a cell phone. That's because there is a demonstrated causitive with these activities, and WRT the cell phone, there are many cases where driving has been affected and people have been killed due to the use of a cell phone--particularly when texting is involved. Two way radio has been in use for 70+ years, and only when the CELL PHONE came to be, did we begin to hear about 'distracted driving'.

    I have brought forth a number of factors as to why I believe that the states may not prohibit the use of directly licensed two way radios. IOW, when one has been issued a license from the Federal Government and FCC has issued Rules and Regulations, that licensee MAY operate that equipment in accordance with the rules set forth. The only way the State could prohibit, ticket, prevent the use of licensed radios would be to get FCC's cooperation to restrict the singular act of operating a licensed two way radio in the ABSENCE of any other evidence of "distracted driving". Put another way, a cop merely observing an amateur, a CBer, or a commercial two way operator on a mike has no business citing that licensed operator (and a CB operator IS "licensed" by proxy by FCC so long as he obeys Part 95) for engaging in what he is authorized to do by a HIGHER authority, and that "higher authority" IS FCC. It doesn't make US somehow "above the law"' it just means we are doing what we are already authorized to do, and the State needs to worry about OTHER things that DO cause distracted driving and leave licensed hams alone! Operating a mobile two way radio has almost NO affect on driving- certainly not enough to have any impact on the issue!
     
  15. KV6O

    KV6O Ham Member QRZ Page

    Making your argument that using a 2-way radio is not a hazard is exactly the issue you need to make. I don't know of any studies or research that support this, or illustrate the difference between using a cell phone and using a 2-way radio, but that's where your argument lies.

    Dragging the FCC into this makes no sense. The FCC has ZERO influence over state laws regarding operating a motor vehicle. FCC licensing has nothing to do with driving laws - get over it!
     

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