397. EQUIPPING MOTOR VEHICLES WITH RADIO RECEIVING SETS CAPABLE OF RECEIVING SIGNALS ON THE FREQUENCIES ALLOCATED FOR POLICE USE. A person, not a police officer or peace officer, acting pursuant to his special duties, who equips a motor vehicle with a radio receiving set capable of receiving signals on the frequencies allocated for police use or knowingly uses a motor vehicle so equipped or who in any way knowingly interferes with the transmission of radio messages by the police without having first secured a permit to do so from the person authorized to issue such a permit by the local governing body or board of the city, town or village in which such person resides, or where such person resides outside of a city, or village in a county having a county police department by the board of supervisors of such county, is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or imprisonment not exceeding six months, or both. Nothing in this section contained shall be construed to apply to any person who holds a valid amateur radio operator's license issued by the federal communications commission and who operates a duly licensed portable mobile transmitter and in connection therewith a receiver or receiving set on frequencies exclusively allocated by the federal communications commission to duly licensed radio amateurs.
Federal Statutes
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 16, 1996]
[Document affected by Public Law 104 -132 Section 731]
Title 18 USC 2510-2511
TITLE 18 CRIMES AND CRIMINAL PROCEDURE
PART I -- CRIMES
CHAPTER 119 -- WIRE AND ELECTRONIC COMMUNICATIONS
INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS
Sec. 2511. Interception and disclosure of wire, oral, or
electronic communications prohibited
(g) It shall not be unlawful under this chapter or chapter
121 of this title for any person
(i) to intercept or access an electronic communication made
through an electronic communication system that is
configured so that such electronic communication is readily
accessible to the general public;
(ii) to intercept any radio communication which is
transmitted
(I) by any station for the use of the general public, or
that relates to ships, aircraft, vehicles, or persons in
distress;
(II) by any governmental, law enforcement, civil defense,
private land mobile, or public safety communications
system, including police and fire, readily accessible to
the general public;
(III) by a station operating on an authorized frequency
within the bands allocated to the amateur, citizens band,
or general mobile radio services; or
(IV) by any marine or aeronautical communications system;
Sec. 2510. Definitions
(16) ``readily accessible to the general public´´ means,
with respect to a radio communication, that such
communication is not
(A) scrambled or encrypted;
(B) transmitted using modulation techniques whose essential
parameters have been withheld from the public with the
intention of preserving the privacy of such communication;
(C) carried on a subcarrier or other signal subsidiary to a
radio transmission;
(D) transmitted over a communication system provided by a
common carrier, unless the communication is a tone only
paging system communication;
(E) transmitted on frequencies allocated under part 25,
subpart D, E, or F of part 74, or part 94 of the Rules of
the Federal Communications Commission, unless, in the case
of a communication transmitted on a frequency allocated
under part 74 that is not exclusively allocated to
broadcast auxiliary services, the communication is a two
way voice communication by radio; or
[CITE: 47CFR97]
TITLE 47--TELECOMMUNICATION
CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION
(CONTINUED)
PART 97--AMATEUR RADIO SERVICE
Sec. 97.111 Authorized transmissions.
(a) An amateur station may transmit the following types of
two-way communications:
(1) Transmissions necessary to exchange messages with other
stations in the amateur service, except those in any
country whose administration has given notice that it
objects to such communications. The FCC will issue public
notices of current arrangements for international
communications;
(2) Transmissions necessary to exchange messages with a
station in another FCC-regulated service while providing
emergency communications;
(3) Transmissions necessary to exchange messages with a
United States government station, necessary to providing
communications in RACES; and
Sec. 97.403 Safety of life and protection of property.
No provision of these rules prevents the use by an amateur
station of any means of radiocommunication at its disposal
to provide essential communication needs in connection with
the immediate safety of human life and immediate protection
of property when normal communication systems are not
available.
Sec. 97.405 Station in distress.
(a) No provision of these rules prevents the use by an
amateur station in distress of any means at its disposal to
attract attention, make known its condition and location,
and obtain assistance.
(b) No provision of these rules prevents the use by a
station, in the exceptional circumstances described in
paragraph (a) of this section, of any means of
radiocommunications at its disposal to assist a station in
distress.
Annotated Case Law
1. Constitutionality.
People v. McGee, 1978, 97 Misc.2d 360, 411 N.Y.S.2d 514.
Ruled that section 397 is constitutional and not a
preemption of an act of Congress.
People v. Mcgee reads:
"Motor Vehicles - Radio Capable of Receiving Police Signals
Section 397 of the Vehicle and Traffic Law, which
proscribes equipping a motor vehicle with a radio receiving
set capable of receiving signals on the frequencies
allocated for police use without a permit, for the purpose
of preventing criminals from listening to police broadcasts
in their automobiles, does not represent and
unconstitutional infringement in the area of regulation of
the airways pre-empted by congress since the statute only
proscribes equipping motor vehicle with a certain type of
radio device and does not apply to duly licensed radio
amateurs, prohibit broadcasting or deal with the regulation
of the airways in any manner. The term "radio receiving
set capable of receiving signals" is not so vague as to be
unconstitutional since the term "signals" must mean voice
messages."
2. Legal Purpose.
People v. McGee, op. cit.
Stated that the rationale for the statute was to prevent
criminals from monitoring police broadcasts in their
automobiles, prior to or after the commission of a crime.
It further stated that the statue protects police radios
from jamming and other interference.
3. Definition of Radio Receivers.
People v. Moore, 1978, 92 Misc.2d 807, 401 N.Y.S.2d 440.
People v. Faude, 1976, 88 Misc.2d 434, 388 N.Y.S.2d 562.
These two cases established that radar detectors used to
avoid police speed traps were not radio receivers because
they could not translate the radar signals into a
comprehensible form.
People v. Verdino, 1974 78 Misc.2d 719, 357 N.Y.S.2d 769.
This critical case established that the statue applies to
any radio that is capable of receiving police signals
whether or not the radio was actually being operated. In
this case Verdino was caught with a scanner that operated
from the cigarette lighter but was not plugged in at the
time he was stopped. The court ruled that the radio was
still "capable" of receiving signals thus making it
illegal.
4. Issuance of Permits.
1975, Op.Atty.Gen (Inf.) 311.
The Attorney General issued an opinion that county boards
can designate a person to issue permits only in counties
that have a county police department established by a
county charter.
5. Confiscated Equipment.
1976, Op.Atty.Gen. (Inf.) 255.
The Attorney General issued the opinion that a confiscated
radio is not contraband and must be returned to the
individual in original condition even if that person has
been convicted under section 397.
The Federal Communications Commission
FCC PR DOCKET 91-36
Federal Register Vol 56, Nr 46, pages 9951-9953
In the matter of Inquiry into the Need to Preempt State and
Local Laws Concerning Amateur Radio Operator Use of
Transceivers Capable of Reception Beyond the Amateur
Service Frequency Allocations
NOTICE OF INQUIRY
1. On November 14, 1989, the American Radio Relay League,
Incorporated (ARRL) filed a Request for Issuance of
Declaratory Ruling
(1) requesting that the Commission
preempt certain state statutes and local ordinances
affecting transceivers
(2) used by Amateur Radio Service
licensees. Some of these laws are so broad as to prohibit
mere ownership of such transceivers if they are capable of
reception of communications on certain frequencies other
than amateur service frequencies.
3. Most of these laws are directed primarily toward
frequency reception capability by equipment located in
vehicles, but at least one law reaches possession of this
equipment merely outside the home
(6). Some laws, however,
specifically exempt amateur operators who possess equipment
in motor vehicles
(7). These state and local laws appear to
be aimed at promoting the health, safety, and general
welfare of the citizenry (8).
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 (9).
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. In regard to 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
(1), many 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 take
part in a variety of safety activities, some in conjunction
with the National Weather Service, that are legitimately
available to amateur operators. Such activities benefit the
public, especially in times of crisis, and some require the
mobile use of the amateur stations
(11). ARRL states that
the "vast majority" of amateur operators take part in these
mobile activities, and that the widespread enforcement of
laws such as New Jersey's would make illegal the possession
of "essentially all" modern amateur mobile equipment
(12).
(As of January 31, 1991, the Commission's licensing
database indicates that there are 502,133 amateur station
licensees in the United States and its territories and
possessions.)
ARRL states that, as a result of scanner
laws, "several dozen instances of radio seizure and
criminal arrest [have been] suffered by licensed amateurs
in recent months."
(13)
(2) Radio equipment capable of both transmission and
reception. We are concerned herein, however, only with
reception capability. Transmission by amateur operators on
unauthorized frequencies is prohibited.
(7) See e.g., Minn. Stat. Ann. 299C.37 (West Supp. 1990):
N.Y. Veh. & Traf. Law 397 (McKinney 1986).
MEMORANDUM OPINION AND ORDER
PR Docket 91-36 Aug, 20, 1993
. "..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,"...
Furthermore, the Commission's Rules do not in any way
prohibit an amateur service transceiver from having
out-of-band reception capability.
11. Against this background... [S]canner laws that prohibit
the use of the transceivers because they also receive
public safety, ... or other radio service frequencies
frustrate most legitimate amateur service operations...
Virtually all... equipment in use today can receive
transmissions on the...frequencies at issue...
This very
significant limitation on amateurs operating rights runs
counter to the express policies of both Congress and the
Commission...
and impermissibly encroaches on federal
authority over amateur operators. It conflicts directly
with the federal interest in amateur operators being able
to transmit and receive on authorized amateur service
frequencies.
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. (e.g.
Cellular...)
WE find that, under current conditions and
given the types of equipment available in the market today,
such laws prevent amateur radio operators from using their
mobile station 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 attempt
to accommodate amateur communications is preempted. (See
Amateur Preemption order 101 FCC 2d at 960)
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.
(Local government may not deny radio licensed radio use).
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 though the use of technology such
as scrambling or encryption.
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 reception of
public safety, special emergency, or any other radio
service frequencies not otherwise 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
frequencies.
We therefore hold that such state and local
laws are preempted by federal law.
14. Accordingly, IT IS ORDERED that the request for a
declaratory ruling files by the ARRL IS GRANTED to the
extend indicated herein and in all other respects is
DENIED.
Mere possession by defendant of scanner that could be reprogrammed to receive police communication frequencies was insufficient to warrant indictment on charge of possession in motor vehicle of radio capable of intercepting police communication frequencies, in absence of evidence that defendant's scanner could easily be tuned to police frequencies.
