Monitoring and the
Law
Jorge Rodriguez
jorgerodriguez@monitoringtimes.com
Cut the Power and
the Coax:
Navigating
Florida’s Scanner Law
If you’re visiting Florida this summer as
millions of Americas do each year, bring your sunscreen and your scanner, just
leave the power cord and outside antennas at home. Because scanning radios are
legal in Florida so long as they are not connected to external power or
antennas, even in your car. That’s the opinion of the Office of the Attorney
General of the State which in 1974 was asked to interpret the law which has
changed very little in almost thirty years.
The Florida statute which regulates such
radios is FS § 843.16 which is listed under the obstruction of justice chapter
of the title on crimes. It prohibits the installation of radios in motor
vehicles and businesses, which can be used to listen to police or law
enforcement officers. What is interesting about the law and its interpretation
since 1974 is the fact that the radio must be installed in order to be illegal
and installation requires an external power source and antenna.
So says
Richard Prospect, Assistant Attorney General of Florida in his response to
Melbourne Police Chief Robert Cotton when he was asked to provide an
interpretation of the law. Prospect advises that “… my legal research reveals no
specific judicial interpretation relative to the meaning of 'installation' as
used in the statute…. I have reviewed many similar constructions of the word and
perhaps that which is most applicable to this issue is the one given me by an
engineer of seventeen years experience with the Federal Communications
Commission. His technical assessment of radio installation would be one which
requires the particular unit – whether receiver, transmitter, or transceiver –
to be connected to a power source and have need of an external antenna
capable of rendering the unit functional” (see Attorney General Opinion
74-369; otherwise cited as OAG 074-369).
Over the years
this has come to mean that the radio must be connected to some external power
source and an external antenna, something radios of the time required to work,
but which modernday handhelds don’t need.
What legal weight or value do opinions such
as this carry? While they are not controlling, primary decisions of law, they do
carry the weight of so-called secondary authority. That is legal authority which
can be used to persuade a Court, but is not binding on the Court. The Office of
the Attorney General’s web site describes such opinions as “… legal advice [to
the requestor of the information] on questions of statutory interpretation and
[which] can provide guidance to public bodies as an alternative to costly
litigation.”
However, such opinions are not law. “They are
advisory only and are not binding in a court of law. Attorney General Opinions
are intended to address only questions of law, not questions of fact, mixed
questions of fact and law, or questions of executive, legislative or
administrative policy.” Just like the information in this column, which is not
legal advice, Attorney General Opinions are not a substitute for the advice and
counsel of attorneys.
In 1989,
Attorney General Robert Butterworth of Florida was again asked to interpret the
statute at the request of Police Chief Peter Petracco of Boca Raton, Florida. At
issue this time was a question about whether the Florida law prohibiting
installed scanners in vehicles and businesses applied to radio and television
stations. The “to the point” opinion of the Attorney General was that: “The
installation [and remember in Florida installation means connected to external
power and an external antenna] of a police band radio monitor in a business
establishment or motor vehicle, except in emergency or crime watch vehicles or
in a place established by federal, state, county or municipal government for
governmental purposes, by a person other than a radio or television station [see
Attorney General Opinion 60-31 and 89-44; otherwise cited as OAG 60-31 and OAG
89-44] or a holder of a valid amateur radio operator or station license issued
by the Federal Communications Commission, violates [the Florida law].
As in other
states, visitors and citizens should consider keeping a copy of these opinions
and the Florida statute in their vehicle, along with any other relevant
paperwork, such as your FCC license, media credentials, etc. if you have an
installed radio. Don’t expect the officer on the street to be aware of these
nuances in the Florida law. And don’t expect him or her to readily be able to
tell the difference between a family radio service (FRS) two-way and a handheld
scanner or other commercial two-way radio.
Finally, these laws apply to government
action by government people. So in these times of heightened awareness and
concerns about terrorism, be prepared for different rules at any of the many
private tourist attractions in Florida – especially Walt Disney World in
Orlando. Years ago, Disney security would tell guests they saw with two-way
radios and scanners that the equipment was not allowed in the parks. Whether it
was an official company policy or the position of the on-duty security person
could never be determined. However, as private property Walt Disney World, Bush
Gardens and the many other private tourist venues in Florida have a right to
restrict who and what enters their property for the safety of all of their
guests.
The actual
Language of the Florida Law can be found at:
http://www.flsenate.gov/Statutes under the headings Title XLVI,
Crimes Ch.775-896, Chapter 843, Obstructing Justice, Section 16.
The actual
opinions of the Attorney General can be found at http://myfloridalegal.com/opinions.
Is that Old Frequency List Illegal?
This past
June, Monitoring Times learned days before passage that a Nevada
anti-terrorism law contained a provision concerning scanner monitoring. Assembly
Bill AB441 was found to contain a provision which in times of emergency could
have allowed the governor to declare certain information including radio
frequency lists confidential and possession of such lists illegal.
Originally,
AB441 could have made the publication, sale and possession of emergency response
radio frequencies illegal if Nevada’s Governor declared the information
confidential because of a terrorist threat. Since such information is widely
available, such a restriction was determined to be difficult, if not impossible,
to enforce. Scanner hobbyists and the amateur radio community in Nevada flooded
their elected state representatives in the days before passage with calls,
letters, faxes and emails complaining about the provision and got the bill
changed. (See August Closing Comments - ed.)
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