Change My Mind - I Don't Need Permission to Use Your Repeater

[Northcutt114]

3 hours ago, OffRoaderX said:

It is clear that the FCC has not cared for at least the last 15 years, based on their enforcement database which up until only a year or so ago included publishing warning letters.

I've been thinking about this for awhile. How, exactly, would the FCC go about "enforcing" anything? They are a regulatory body, correct? The have no law enforcement powers so what would they do? Issue you a fine and then, after a certain time of you not paying it, turn it over to the local Sheriff? I don't see a way that the FCC can directly come after you, other than to revoke your callsigns and credentials.

 

[SteveShannon]

4 minutes ago, Northcutt114 said:

I've been thinking about this for awhile. How, exactly, would the FCC go about "enforcing" anything? They are a regulatory body, correct? The have no law enforcement powers so what would they do? Issue you a fine and then, after a certain time of you not paying it, turn it over to the local Sheriff? I don't see a way that the FCC can directly come after you, other than to revoke your callsigns and credentials.

 

https://www.ecfr.gov/current/title-47/chapter-I/subchapter-D/part-95/subpart-A/section-95.313

[Northcutt114]

7 minutes ago, SteveShannon said:

https://www.ecfr.gov/current/title-47/chapter-I/subchapter-D/part-95/subpart-A/section-95.313

So the FCC would have to sue you? Because all of those things say "A Federal Court will..."

 

[SteveShannon]

11 minutes ago, Northcutt114 said:

So the FCC would have to sue you? Because all of those things say "A Federal Court will..."

 

Possibly, unless the rule violation is also a violation of the Communications Act, in which case it could be a felony. 
In general this explains the investigatory and enforcement authority for regulatory agencies:

https://www.justia.com/administrative-law/enforcement-actions/

[WSEU730]

This is essentially a private property rights issue, and the owner/operator of a privately owned and maintained repeater is entirely within their rights to grant or deny permission to use their property, the same as with any radio transceiver equipment. The licensed owner of any radio station is still responsible for monitoring and governing the transmission traffic according to the FCC regulations, as is anyone who transmits on the airwaves within US jurisdiction. Penalties for abuse can range from revocation of any license issued by the FCC to civil and/or criminal penalties depending on the nature of the offending behavior. Besides that, it is only a common courtesy to ask for permission to use someone else's private property.

 

[OffRoaderX]

26 minutes ago, Northcutt114 said:

How, exactly, would the FCC go about "enforcing" anything?

First, they send you a mean letter.. Then, if you ignore that letter.. They'll send you another one..

Then, after a year.. or more, they will issue an "apparent notice of liability" which means they say you owe them money - its like a fine, but with no real teeth..

Then, after you appeal or ignore that, after another year.. or.. two.. they issue an "affirmation of notice of liability" which means they say you still owe them that money..

Then.. when you ignore that.. after a year.. or two.. they must submit the case to the Department of Justice for them to sue you and get an actual court-order.  To my knowledge, in the last 15 years, this has never happened for a CB/HAM/GMRS infraction.  And there are still a couple of people that got "fines" 10 or 20 years ago that have still never paid.

[OffRoaderX]

10 minutes ago, SteveShannon said:

in which case it could be a felony. 

In which case, it would be out of the FCC's hands as they do not, and cannot prosecute criminal matters.

[OffRoaderX]

5 minutes ago, WSEU730 said:

Penalties for abuse can range from revocation of any license issued by the FCC to civil and/or criminal penalties depending on the nature of the offending behavior

The FCC cannot bring or prosecute any criminal action or case.  If a criminal action has occurred, for example maliciously interfering with emergency services, the FCC may help locate/find the person but it is it is up the local/federal jurisdiction to prosecute the crime.

and, just to be clear, using my repeater without my permission is in no way a criminal activity, no matter how big of an imagination you have.

[marcspaz]

20 minutes ago, WSEU730 said:

This is essentially a private property rights issue, and the owner/operator of a privately owned and maintained repeater is entirely within their rights to grant or deny permission to use their property,

 

This is just an "I think"... but I am pretty sure property rights can't possibly apply in this situation.  Someone is not taking physical possession or control of the radio.  The owner of the radio is in possession of the radio and the radio is doing exactly what the owner of the radio programmed the radio to do.  A person nor business does not have the right to not receive open-air radio transmissions on their receiver.  Its just not possible.  The airways are open to the public. 

Saying "you can't transmit transmit in 467.700 with a tone of 146.2 because I don't want to hear you on my receiver"  is the equivalent of calling iHeartMedia and telling them the need to stop broadcasting because you don't want to hear them on your AM/FM radio.  They will just laugh at you and hangup. And that is if they are nice about it.

Now, if iHeartMedia has a transmitter that is malfunctioning and causing harmful interference to a device you own, now you have some grounds to at least start having a conversation.  

[RoadApple]

13 hours ago, marcspaz said:

I Don't Need Permission to Use Your Repeater - Change My Mind

Who are we kidding here - IMHO, the whole darn GMRS thing is on the honor system.  Unlicensed FRS shares channels with GMRS and just by listening nobody knows what type of radio you are using, if it is FCC type certified, or if you should be ID'ing with a GMRS license call sign, how high your antenna is, etc. etc.   The lack of FCC rule enforcement sort of suggests that they think it's the honor system too!

As for the OP question -  It would be ethically courteous and respectful if you asked for permission, but permission being needed or required seems legally ambiguous on public airwaves, owned by none, available to all licensed GMRS users, and only regulated by FCC rules which (unlike Amateur Radio) fail to expressly address this issue.   As for the comparison to trespass on real property, use of a radio repeater without permission could be categorized as Constructive Tresspass at best, and articulating harm is tricky unless the trespasser were monopolizing the repeater use or engaged in some other flagrant FCC rule violation.    For all practical purposes, like it or not, if you put your repeater on a public GMRS channel/frequency, you should probably expect that the public is going to use it.  You can make it inconvenient by not publishing the input tones or that the repeater even exists at all, but that is about as good as it will get.

* It is like putting up your own private volleyball net on a public beach and expecting that when you are not using it, the public won't use it or that someone else's ball won't intentionally or unintentionally go over your net.  Don't like it - take your net down!

The FCC says that the repeater owner “may disallow the use of its GMRS repeater by specific persons as may be necessary” but the only remedy that the owner really has is to turn the repeater off as needed to restrict its use.  Constantly changing tones and codes is a PITA and may be a futile game of cat and mouse.   Another way to look at that specific FCC language might be for the purpose of clarifying that the repeater owner has no duty to provide that repeater to the public and that if/when the repeater owner changes the tones or turns the repeater off, for any reason, the owner is not violating anyone else's right of public use.  IOW, don't file a complaint with the FCC because someone else turned their repeater off, because we don't care!

I think it is to a large extent a delusional exercise in mental masturbation for a repeater owner to assert private use of their equipment when they have configured that equipment to operate on frequencies licensed for public GMRS use.  CTCSS and DCS tones and codes create operational isolation between radios in close proximity, but the use of such tones or codes does not constitute any form of exclusivity.  If you really need or want some form of radio privacy, get a Business or LMR license and put your repeater on those restricted license frequencies where you have a reasonable expectation of the private use of your equipment...

I offer my opinion free of charge, and it is worth every penny!  

[GreggInFL]

1 hour ago, RoadApple said:

The FCC says that the repeater owner “may disallow the use of its GMRS repeater by specific persons as may be necessary” ...

Pardon my noobie ignorance, but all my GMRS radios have some sort of "PTT ID" field (or similar). Question: Can users be individually identified and disallowed?

[OffRoaderX]

4 minutes ago, GreggInFL said:

Question: Can users be individually identified and disallowed?

The only way that would work is if everyone agreed to enter their assigned ID number/code into their radios and IF (big IF) the repeater had the ability to do that (many/most do not).

TL;dr:  NO

[GreggInFL]

12 minutes ago, OffRoaderX said:

The only way that would work is if everyone agreed to enter their assigned ID number/code into their radios and IF (big IF) the repeater had the ability to do that (many/most do not).

TL;dr:  NO

So there is no hardware serial number, ala cell phones?

[OffRoaderX]

1 minute ago, GreggInFL said:

So there is no hardware serial number, ala cell phones?

Maybe.. But even if there is, its not transmitted.

TL;dr:  NO

[GreggInFL]

Just now, OffRoaderX said:

NO

Okay, thanks. So all those ID-related fields I'm seeing in Chirp are voluntary. Got it.

[Northcutt114]

3 hours ago, OffRoaderX said:

Then.. when you ignore that.. after a year.. or two.. they must submit the case to the Department of Justice for them to sue you and get an actual court-order.  To my knowledge, in the last 15 years, this has never happened for a CB/HAM/GMRS infraction.  And there are still a couple of people that got "fines" 10 or 20 years ago that have still never paid.

So it would be an entirely civil matter at that point. A law suit. As opposed to any kind of criminal charges. Seems a bit of a paper tiger.

 

[OffRoaderX]

1 minute ago, Northcutt114 said:

So it would be an entirely civil matter at that point....  As opposed to any kind of criminal charges.

Correct - you cannot criminally charge someone unless they break a law - and the FCC does not make, nor enforce laws. 

[Northcutt114]

3 hours ago, SteveShannon said:

Possibly, unless the rule violation is also a violation of the Communications Act, in which case it could be a felony. 

And that's where I have questions. I would guess that the FCC would turn the "case" over to local law enforcement? They, as a body, are certainly not able to pursue charges on that level.

 

[Northcutt114]

15 minutes ago, GreggInFL said:

Okay, thanks. So all those ID-related fields I'm seeing in Chirp are voluntary. Got it.

If by "ID-related fields" you mean the column that says "Name." all that does is affect what is displayed on the radio when you are on any given channel. None of that information is broadcast.

[OffRoaderX]

6 minutes ago, Northcutt114 said:

I would guess that the FCC would turn the "case" over to local law enforcement? They, as a body, are certainly not able to pursue charges on that level.

No. This has never (at least in the last 15+ years) happened.

and I am not a lawyer, but I question Mr. @SteveShannon's interpretation of how it works. 

[Northcutt114]

4 minutes ago, OffRoaderX said:

Correct - you cannot criminally charge someone unless they break a law - and the FCC does not make, nor enforce laws. 

I have to wonder if there is a bean counter somewhere who has decided that it doesn't make fiscal sense for them to pursue suits. It would probably cost the FCC more than $20,000 to win a case against someone with a judgement of that same amount.