No radio use in Tucson area!

All right, we are back to disagreeing again! This seems more normal.

You likely are right, up to a point. And that point is when a person gets into a vehicle, and drives on a public roadway. The government of the roadway does have control. This is one reason that our traffic laws are varied from state to state.
If you really believe that they don't, are you willing to test that theory? Are you willing to take to the road and text or even talk on a handheld phone, until you get pulled over for it. Are you then willing to inform the cop that since the FCC doesn't regulate using the device while driving, that you are not going to obey the state, county, or local law on this?
This could be a lot of fun to see!
See if the judge agrees with you, or with the law.

Or another example that a couple of my ham buds have run into, the dreaded HOME OWNER'S ASSOCIATION.
By your post, it would seem that the HOA can't regulate your antenna tower, as long as it is in compliance with the FCC, (and possibly the FAA.)
Once again, tell this to the nosy parkers from the HOA that are so bored they will travel the neighborhood, just down right giddy to find a violation, where they can prove their "power."
Then tell it to the judge when you are in a civil action because of this. (Actually, I believe that there is currently a case between an HOA and a ham club. It will be interesting to see how the court rules on this. As I understand it, the premise the club is using, is that amateur radio can be, and has been, a Godsend during a disaster. I'm going to see if I can find anything new on it.
Over

 

OK, the ARRL has provided some good information on HOA vs Hams http://www.arrl.org/restrictive-antenna-ordinances
It seems that, at least as it stands now, the HOAs are able to regulate certain aspects of antennas. This being because of the contract signed by the homeowner and the association. No one forced the homeowner to live there.

Now, by the same token, driving is not a right, but a privilege. When you get your driver's license, you are tacitly agreeing to obey traffic laws.
And no one is forcing you to drive and use the radio.

 

I understand where you are coming from, I threw in the phone thing because it has been discussed before by people a lot smarter than we are in legal circles.

However there is two different issues you are talking about, the use of a mobile device as licensed by the federal government for use by an operator and the HOA issues which is part of a bigger problem, having more to do with a non-government entity dictating to individuals under deed restrictions and contraction limitations.

Outside of the phone issue, the state has no privilege/right to regulate the use of a radio device that is regulated by the federal government exclusively.

This means that the use of it has to fall under the regulations of the federal government, not the state, which has already been confirmed in court - in my state back in the 60's when they tried to stop ham operators from using devices that received police signals, the court found that the state can't regulate ham operators because it is a federal licensed activity.

I also point to this -

http://www.arrl.org/files/file/MobileAmateurRadioPolicyStatement.pdf

By the way, I will not buy property that has any deed restrictions like an HOA. This is because I feel that takes my property rights away and hands it to a faceless controlling entity, un-american as far as I'm concern.

 

First off, let me say that it's not hard to find people a lot smarter than I am. In or out of the legal circles.

Yes, they are definitely two different issues. However, the premise is the same. In the HOA instance, you are voluntarily giving up some of your freedoms, to reside in that association's area. In the incidence of driving, you are voluntarily giving up some of your freedoms to have the privilege of driving. (How I personally feel about the states believing that driving is a privilege, is beside the point.)

The states think they have the right to regulate the use of these devices on their roadways. They aren't regulating the devices themselves, but the use of them while driving. I know this sounds like picking schidt with the chickens, but I hate to see people operating under the mistaken idea that they are going to win a roadside argument with a cop. While it is remotely possible, it is highly unlikely. While they may win in court, if the ticket is written, and there is no guarantee that they WILL win it's going to cost them time, trouble and money to take it to court.
Here is where I have the big problem. Pretty much semantics, however:
"The States encourage mobile amateur radio operation as a public benefit. Every State issues license plates to motor vehicles of licensed radio amateurs showing their FCC-assigned call letters, in order to identify a particular vehicle as a mobile-amateur radio- equipped vehicle. The United States Congress, in 1994, in a Joint Resolution (S.J. Res. 90/H.J. Res. 199 (1994), in “recognizing the achievements of radio amateurs, and to 2 establish support for such amateurs as national policy” found and declared, among other things, that: “reasonable accommodation should be made for the effective operation of amateur radio from residences, private vehicles and public areas, and that regulation at all levels of government should facilitate and encourage amateur radio operation as a public benefit.”
http://www.arrl.org/files/file/Regulatory/Mobile ARS Policy 2014 October.pdf
Now here is what bothers me very much. The use of the word SHOULD, rather than the use of the word SHALL!
And here, from David Sumner L1ZZ of ARRL
"Our relief was short-lived. While this was going on at the state level, Congress was working on federal legislation called the Moving Ahead for Progress in the 21st Century Act (MAP-21). Included in the provisions of this 584-page transportation bill was funding for a new Distracted Driving Grant Program to encourage states to enact and enforce distracted driving laws. MAP-21 was signed into law on July 6, 2012 as Public Law 112-141." http://www.arrl.org/files/file/QST/This Month in QST/November 2013/It Seems to US.pdf
I'm not arguing here just to be an arse. This is a subject of great concern to me, as it should be to all Hams.

The Michigan State Police Legal Update for April 2006, states: "
MCL 750.508 Police scanners in motor vehicles Effective May 1, 2006 Citizens will no longer be required to obtain a permit from the State Police in order to equip a motor vehicle with a scanner. Instead, it will be a crime if a scanner (regardless of its location) is used in the commission of a crime with a penalty of 93 days or more. A person who has been convicted of a felony within the past 5 years is prohibited from possessing a scanner at any time. Public Act 39 of 2006"
This makes no reference to Ham Radio Operators, nor does it touch on anything remotely resembling the state not being able to regulate what happens on the roadways. At least as I read it.
If you can come up with ANY case law ANYWHERE that is actually been adjudicated, or any written law that has actually been codified, where the states are PROHIBITED from enacting and enforcing a law on Ham mobile operation, I'd appreciate it very much, if you would post it, or link to it.

Again, this is an ambigous SHOULD rather than SHALL.
Now then, there is this from the ARRL:http://www.arrl.org/news/arrl-gauging-impact-of-revised-california-distracted-driving-law
Here is a brief exerpt:
"ARRL Gauging Impact of Revised California Distracted Driving Law
10/04/2016
California has upped its game in cracking down on distracted driving, and radio amateurs there are concerned that a recent revision to the state’s Motor Vehicle Code could affect Amateur Radio mobile operation. The old law, which included an Amateur Radio exemption, already prohibited motorists from using electronic wireless communication devices to write, send, or read a text-based communication while in motion, unless the device was configured for voice-operated and hands-free operation. The revised law does not exempt Amateur Radio."

As I see it, this is an ongoing problem that is not likely to go away, until each individual state passes the appropriate legislation.

Now this is something that we both agree on!

 

Well ok, I haven't search case law yet, too tired to go there and dig through the cases.

However there were two events that speak to the limitations of the states and local authorities that happened in the courts that I remember, one was in NJ and I think the other was in Ohio. There were actually two or three NJ cases, from the early 70's to the early 90's. a couple have been discussed on QRZ, but not all of them.

In the NJ case, the equipment was seized and the operators were ticketed. They had the backing of the feds through the FCC and the FCC wrote a brief about the limitations of the state and the need to allow the licensed operator to operate to the fullest extent permitted by their license.

However the Ohio case is a bit different, now I am going on memory so please excuse me if I get this wrong but that case had to do with actual operations of the radio while in motion and the same brief was used to back up the operator in federal court. Now like I said these are two, there are others stretching back to the sixties.

I still stand on what I said, you can slice and dice it but it is just like a CDL that follows the FMCSA rules as part of the states unified law agreements, the state can not hold a 'foreign' CDL holder to standards that only apply to their CDL holders if it is unique to that state, example NY has some restrictions that apply only to their CDL holders but because the FMCSA CDL program is used as a harmonized guide for interstate commerce, those restrictions do not apply to a "foreign" driver. The same is also supposed to apply to the trucks themselves, California has limits to what they can do to allow interstate commerce to take place, but CARB essentially is regulating the entry of a truck by a foreign authority by having emission standards that do not apply to the home state of the foreign authority.

By the way, the first example is a true one, it has been in court and the court sided with the driver, NY can not hold the driver liable for something that doesn't apply to them because they are what is considered a foreign driver and not a NY driver.

As for Michigan, the scanner law has been around for a long time, the exemption came in the 70's IIRR, and revised as part of an overall streamlining strategy.

 

I just have to wonder why there are states that continue to pass these laws, if they have been found to be unlawful.
And it's pretty obvious that there have been problems for hams driving and using their radios. ARRL would not be so deep into this, if there were no problems.
OBTW, when I first posted on this, I was doing a lot from memory too. It wasn't until you got me thinking, that I actually researched it. And things like this really are a time consuming PITA to research.
I just don't want to see someone end up in trouble out beside the road over it.

 

Because it costs little to pass such laws, but they can bring in revenue until they are struck down... if ever because of the cost to do so.

 

The CB is useless anyways so I really don't care.

 

So far I can count 5 times in the last 6 months it's given me heads up on multi hour backups and closures in time for me to route around or stop short to break to save clock.

Kind of far from useless.

 

And I can count several hundred times in the last 6 months of someone saying they ain't got no panties on or shut up stupid