[BC] Pirates...Aaarghh!

[DANA PUOPOLO]

Does this surprise you? It's brought to you by the same moron legislators who
brought you the Terry Schiavo debacle...

-D

------ Original Message ------
Received: Wed, 06 Jul 2005 05:09:16 AM PDT
From: "Paul Christensen" <attorney at broadcast.net>
To: "Broadcast Radio Mailing List" <broadcast at radiolists.net>
Subject: Re: [BC] Pirates...Aaarghh!


> Florida, lead by the FAB, Has so far been able to put it into the
> jurisdiction of the state. The FDLE has put together a task force in south 
> Florida to work on these pirate stations.

The main issue I have with F.S. 877.27 is that the statute creates a 
strict-liability crime -- with or without the intent to interfere.  Most 
crimes require the intersection of intent with an act.   The statute 
reasonably protects licensed services, but a Citizen's Band user who 
unintentionally causes any level of interference to a car radio while 
stopped at an intersection, is strictly guilty of a third-degree felony in 
the State of Florida.    Like many statutes, this one could have been 
drafted better and with little additional effort.  The statute was meant to 
crack down on pirate stations, but non-licensed services recognized under 
the Communications Act can become collateral victims.

Regarding the legality of the statute in the context of federal 
preemption -- I really do not see much there that isn't already mirrored by 
the Communications Act.  The reality is that a person who causes 
interference affected by the statute could be haled into court on both the 
federal and state law claims.  What's a defendant to use as a defense?  That 
the state law is pre-empted by federal law which already limits intentional 
and unintentional interference?  If the complaint refers to both relevant 
sections of state and federal law, penalties under the federal law will 
apply anyway - but will certainly be less punitive than the state's 
third-degree felony.

Moreover, if Congress or the FCC (under Congress' intent to delegate a 
federal enforcement issue) defers its right to the states as Alan seems to 
point out, there is essentially no preemption controversy to raise as a 
defense.

-Paul

====================================
Paul Christensen, CPBE
LAW OFFICE OF PAUL B. CHRISTENSEN, P.A.
3749 Southern Hills,  Jacksonville, Florida 32225
Office: (904) 379-7802   Facsimile: (904) 212-0050
pchristensen at ieee.org






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