Under §97.103, Station licensee responsibilities, section (c) states,
The station licensee must make the station and the station records available for inspection upon request by an FCC representative.
This is, of course, to ensure that your equipment meets the technical requirements of Part 97. Having said that, I’ve never heard of any instance where the FCC has actually requested such an inspection.
Even so, an organization called the Pacific Legal Foundation (PLF) thinks that this requirement is unconstitutional. Timothy Snowball, a lawyer with the PLF writes:
People eagerly joining up for the hobby may not realize that FCC licensure rules require them to give up an important constitutional safeguard of their privacy. In order to receive a ham radio license from the FCC, would-be operators are forced to give up their Fourth Amendment right to be free from unreasonable warrantless searches.
This last requirement is blatantly unconstitutional.
One doesn’t need to be a criminal or have anything to hide to be concerned about letting government officials into one’s home for unannounced FCC “inspections.”
…
And as long as the FCC can deploy that power against hams, it will continue to do so. But that could change if someone has the courage to stand up for the constitutional rights of amateur radio operators. It’s time for the amateur radio community to challenge these onerous and unconstitutional licensing requirements.
This is an interesting question. On the one hand, I can certainly see where this might be unconstitutional, but to me, this sounds like someone looking for a problem where none exists.
For example, despite what Snowball writes, there’s nothing in the rules that say that the inspections will be “unannounced.” The rules say “upon request,” and even then, I’ve not heard of any requests by the FCC to inspect a station in my nearly 50 years of being a radio amateur.
It seems to me that if this were truly an issue that I would have heard about it and that the ARRL would already be involved. I’ve just emailed my ARRL director to see if he knows of any FCC inspection requests and if the ARRL legal counsel has any opinion on the matter. I’ll post whatever I find out here.
In the meantime, I’d like to hear what you think. Do you feel violated, or is this much ado about nothing? Do you know of anyone whose station has been inspected by the FCC?
Steve Gutknecht says
I see both sides but i think it is not something that has to have a law suit brought about. I have been a ham for 27 years and never heard any one having that requested of they.
N3RPE Steve
Walter Underwood (K6WRU) says
I am NOT a constitutional scholar, but this seems to be a legitimate area of inquiry. There have been a few Supreme Court cases on “administrative searches”. These are searches in non-criminal cases. Some non-FCC examples are OSHA, liquor licenses, building inspections, investigating the cause of fires, and home visits by welfare case workers. Those are generally allowed. But random checks of driver’s licenses are considered unconstitutional.
If the FCC gets an administrative search warrant, then the problem disappears. Those have a lower burden of proof than a criminal warrant. The fourth amendment prohibits warrantless searches.
Imagine that you had an elevator in your home. Is it unconstitutional to have a scheduled inspection?
This looks like a good, if technical, overview.
https://www.law.cornell.edu/constitution-conan/amendment-4/searches-and-inspections-in-noncriminal-cases
I’m guessing that the article from Pacific Legal Foundation is fishing for a case to take to trial. I expect they’ll come up empty. Without anybody who has been “harmed” by this, they can’t bring a case.
Dave New, N8SBE says
I believe that the FCC has used their inspection powers in willful interference cases, where they’ve tracked a signal interfering with e.g. the local police frequencies down to a residence, and knock on the door, asking to inspect. If the owner refuses, they can be fined for refusing the inspection.
If they let them in, and they find equipment that is capable of transmitting on the frequencies in question, they will attempt to get the owner to admit that he actually had been on those frequencies just before they knocked. Sometimes they can get the owner to give up the equipment in exchange for not fining them, depending on how bad the case was.
Every case is different.
The ARRL used to report on such cases in the past, if it involved hams, former hams, or ham equipment or frequencies, but I’ve not seen any recently. The FCC publishes all this in their ‘enforcement actions’ https://www.fcc.gov/enforcement
Mark says
Key word (Constitution): “unreasonable search”
FCC – available for inspection upon request.
If the FCC conducted an unreasonable search (e.g. at an unreasonable time, or demanded to look at areas/things not related to the station or its records (you keep your records in your station, correct?) – here is no infringement of rights.
Don N4KC says
N8SBE is correct. There have been many instances of an inspector knocking on the door of someone who appears to be causing interference or operating illegally. That includes hams playing music or deliberately interfering with repeaters. And, of course, inspectors can show up at broadcast stations and ask to see the public file, meter readings, or the transmitter. I’ve been asked by an FCC inspector to turn the transmitter off and back on using the remote control system…in the middle of morning drive-time…to show that it works and that I, as operator on duty (I was the deejay), knew how to do it.
This is an interesting one. As others have nooted, this appears to be someone looking to find something to file a legal challenge over, maybe to make some kind of other point unrelated to amateur radio.
BTW, an FCC inspector is perfectly welcome to inspect my little station any time he or she wants. Just give me enough warning so I can put on shoes. I just hope I’m not asked to go into all that rigamarole about how I determine that my station falls within RF exposure measurement requirements.
73,
Don N4KC
http://www.n4kc.com
http://www.donkeith.com
Mike W8MRA says
40 years ago, I did have the FCC come and inspect my station. They called or snail mailed me before hand. They simply looked at my radio, an Yaesu FT-301. And then said Thank You and left. Told me it was “routine”. Never heard anything from them since.
Steve~W8SFC says
I am not certain what act or acts a licensed amateur would have to commit that would cause FCC to respond with an order to inspect a licensee’s station and equipment, but I would think for an individual to garner this level of attention there would have to be a number of complaints filed before they would pursue an individual station inspection. Of course I could be wrong, but the manpower (a subset of the 1,688 total of employees of the FCC) would be extremely busy if they were to carry out impromptu site inspections.
I am more concerned about FCC rulings such as sunsetting amateur access to the 3.5 GHz band. Personally I do not have the necessary equipment to use this part of the RF spectrum, but I might if I wanted to establish a presence in the band – which was allowed when I was originally licensed. This seems to be the preferred method of FCC’s current leadership when a commercial interest or group expresses desire to dominate a part of the spectrum at the expense of licensed amateurs. These commercial interests who seem to have more clout than all of the licensed amateurs regarding the use of the RF spectrum. Perhaps the fees they can collect from enterprises are an attractive revenue source, (as in how much FCC charges commercial entities for licenses to use RF real estate), versus how much they charge for amateur license fees and renewals. What ever their reasoning, carving up and selling off the rights of use of ever growing portions of the spectrum to these businesses brings into question how long amateur radio has to continue existing on the air, especially when they seem to prefer to “sunset” us out of the band.
So I am by far more concerned about losing the access I have to the amateur radio bands through administrative edict than I am worried about having my station inspected.
73!
Steve~W8SFC
Phil Kane says
A few comments from a retired FCC enforcement engineer who is also a communications attorney. I spent 28 years as a field engineer, enforcement supervisor, and finally as the Engineer in Charge of the San Francisco Field Office. Field enforcement policy is my specialty.
Yes, FCC field agents can and do inspect amateur radio stations when necessary to resolve technical or regulatory problems. In all the years I or my people did not waste government resources on random inspections of amateur radio stations. Broadcast stations and ship radio stations were another matter – and even that has changed in the past few decades with private sector technicians certifying compliance of those types of stations..
Federal courts have held that an amateur license is a privilege, not a right. As such, if a licensee “willfully or repeatedly” (legal term of art) refuses inspection on request, the Commission’s remedies are to assess a Monetary Forfeiture, an administrative penalty subject to due process of hearing and appeal as provided by Federal law – legal cites on request.
If the station has been used in certain types of violations (willful interference is the major type) the Commission can apply to the Federal District Court for a Seizure Warrant executed by the US Marshal without notice followed by a hearing before in the District Court as to why the equipment should not be Forfeited to the government.
In both cases above, the Commission cannot retain any money or equipment forfeited – it all goes into the Federal Treasury General Fund.
I have little respect for the issues that the Pacific Legal Foundation escalates to the level of constitutional court cases. Recently they sued the State of Oregon over someone who called himself an “engineer” and fought with the state over traffic light timing even though he wasn’t educated or licenses as such. The outcome of that case was that yes, he could call himself an “engineer” but no, he could not practice or hold himself out to the public as such.
As for whether the local FCC enforcement agent can ask to inspect my station without notice — no problem! I trained the local agent and several of those in the Western Region and I like to keep in touch with them! Most of them like to hear what it was like to be an enforcement agent “back then”.
73 de K2ASP – Phil Kane
Beaverton (Washington County) Oregon
Joe Walker says
I was thinking about getting my license, but when I heard this I have put a hold on it. This is the way I see it. It’s never a problem until it is. The last 5 years have taught me that anything can happen and it will maybe not today but if the door is cracked someone will open it and well then its too late. Worried in Ga.
Dan KB6NU says
Hi, Joe. If I were you, I wouldn’t let this deter you from getting a ham radio license. This is just a matter of lawyers fishing for business. I have been licensed for more than 50 years, and I have never known anyone who has had to make their station available for inspection.
Bob says
I agree that getting a license shouldn’t be avoided due to 4th amendment concerns. But the mere lack of abuse by the federal government for decades does not determine lack of abuse in the future. The obscure Hatch Act went for far more than 50 years without any use at all until the DOJ and the FBI, on suggestion by a sitting Vice President, abused the law to surreptitiously entrap a US general and White House official. Wherever possible, I prefer to explicitly keep my rights. I’m no lawyer, but if there is a constitutional problem with the law, it should be fixed regardless of the federal track record to date. And the fact that the FCC hardly ever uses the search clause shows it would not be overly burdensome to simply require a warrant like with most other government searches if a request is denied by the property owner. They can still request a search but shouldn’t be able to force one without a warrant. Besides, it sounds like the overwhelming majority of people would readily grant a friendly request without a warrant anyway.
Brandon says
It’s really frustrating. I would also like to be able to communicate via HAM radio and have even studied to do so responsibility, but there are multiple constitutional issues and potential violations:
1. Infringement on free speech (1st Amendment). As long as an operator’s use is not infringing on someone else’s speech, a person should be able to communicate as they see fit. This speech should be considered similar to any other speech. Section 97.113 blocks all kinds of speech that would normally be allowed if someone was in public. One may argue that there are other licenseless radio avenues for some forms of speech, but as a whole the power is limited. This would be like banning someone from driving to NY state to speak to someone without a special license due to the “range”.
2. Infringement on 4th Amendment right to privacy. The regulations explicitly require identification. Normally, not even law enforcement can require identification unless:
“the officer must have a reasonable, articulable suspicion that a crime has occurred or is about to occur. This means the officer must be able to state facts and circumstances that would lead a reasonable person to believe that a crime occurred or will soon.”
There is no law that forbids a person from encrypting or obscurring communication, yet HAM licensing forbids any kind of encryption, out-of-step from normal communications.
In some cases, the coordinates and locations of station locations are forced to be disclosed even though a person has committed no crime nor is there any intent to do so.. The fact that a person is even forbit from operating at different locations under certain circumstances also restrains a person’s inalienable right to move about as they see fit.
3. In section 97.27 the FCC blatantly assumes the right to modify the rules to infringe further if it sees fit. Also in 97.115 (b)(2), if you are trapped into getting the license and your license is revoked, the 3rd Party rule completely bans others who are licensed from speaking on your behalf. This not only encroaches upon the rights of the original person but upon every other responsible user from speaking on their behalf.
I could go on and on. People can be shut-down virtually at will and for stupid reasons. Even if you ARE already licensed, it’s still in your interest to fight these unconstitutional endeavors and restrain the FCC from unnecessary restrictions, so that you are protected in the future going forward.
https://www.npr.org/2023/06/25/1183783429/wjbe-knoxville-black-owned-radio-station-lose-license-fcc