>>> Part 2 of 2...
    After all of the exceptions are carved out, the bottom line is that the
only radio frequency transmissions which are off limits are those which are
not readily accessible to the general public, as that term is defined in the
statute.  The definition of "readily accessible to the general public" is
stated in the statute as follows:
     (a)  not scrambled or encrypted;
     (b)  not transmitted using modulation techniques whose essential
          parameters have been withheld from the public with the intention of
          preserving the privacy of such communication;
     (c)  not carried on a subcarrier or other signal subsidiary to a radio
          transmission;
     (d)  not transmitted over a communication system provided by a common
          carrier, unless the communication is a tone only paging system
          communication;
     (e)  not 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.
    The first two of these are no problem.  If the signal is scrambled,
law-abiding DXers will leave it alone.  Paragraph (c) begins the real
restrictions on DXers.  Under the statutory definition, signals on a
subcarrier, such as the types being experimented with in television at the
moment, are not readily accessible to the general public and are not 
ermitted
listening.
    The next section poses the greatest problem for DXers.  Under the
definition, any signal, other than a tone, which is transmitted by a common
carrier is off limits.  The FCC defines a common carrier as "any person
engaged in rendering communication service for hire to the public." (47 CFR
21.2) The statutory definition given in 47 U.S.C. 153(h) is a bit more
specific in that it specifically excludes radio broadcasters who, through 
ale
of commercials, do render a communication service for hire.  But, even with
the removal of broadcasters, this definition is very broad and will include,
beyond obvious services such as cellular telephone, just about every utility
station on the face of the earth.
    The types of radio transmissions made off limits to DXers by paragraph 
e)
are certain satellite communications, certain microwave communications, and
auxiliary stations to broadcasters used for such things as feeds from the
mobile van back to the studio or from the studio to the transmitter. The
frequencies of these services are all above 1 Gigahertz except for the bands
928-929 MHz and 944-960 Mhz.  The exception to this is the frequency
assignment given to remote broadcast pickup stations under subpart D of part
74.  This service, which is off-limits to DXers, is assigned bits and pieces
of the radio spectrum from 1606 kHz through 455.925 Mhz.  Twenty-six
frequencies in the shortwave bands are allocated to this service.  The
allocations are scattered between 25.87 Mhz and 26.47 Mhz, but unless you 
ave
a copy of the FCC Rules and Regulations, there is no easy way for a DXer to
know that listening to these transmissions is a federal offense.
    This is precisely why I maintain that this law is unenforceable.  In 
rder
for a prosecution under 18 U.S.C. 2511 to be successful, the government must
prove beyond a reasonable doubt that the DXer intentionally intercepted a
protected transmission.  Since even attorneys are unsure what frequencies are
off-limits, how can the government hope to prove that a DXer who happens upon
one of these federally-legislated minefields in the radio spectrum, actually
intended to do so?
    It should be noted that the Communications Act of 1934 (47 U.S.C. 605) 
as
not been repealed by the new law.  It is still illegal, as it has been since
at least 1934, to divulge the contents of any transmission except for general
broadcast stations, amateur radio and CB transmissions, and transmissions
relating to ships, aircraft, vehicles or persons in distress. A recent case
(Edwards v. State Farm Insurance Co., 833 F.2d 535) concluded that in order 
o
prove an offense under this statute, the speaker must have held a subjective
expectation of privacy that was justifiable under the circumstances.
    I hope that this brief trip through the legal maze of communications
privacy has been useful.  I can see the day coming when some industrious
lawyer, defending a client of means, decides to challenge this unjust law. 
he
basis is very simple.  Just as there is no Fourth Amendment right of privacy
where there is no reasonable expectation of privacy, so too there should not
be a statutory right of privacy where anyone with a receiver can listen in.
To use an analogy, the providers of cellular service want the right to parade
down Main Street with no clothes on and then prosecute anyone who looks.  
his
is simply unfair and unrealistic.
    And beyond that, our First Amendment freedom of speech has a corollary
freedom to be informed and to gather information.  This freedom must extend 
o
the spoken as well as the printed word, as long as no reasonable expectations
of privacy are violated.  Anyone with a receiver should be entitled to hear
anything which is broadcast in the clear over the "public" airwaves for the
simple reason that it is not reasonable for anyone to transmit in this manner
and expect this transmission to be private.  An expectation of privacy can
only be achieved by scrambling the signal, not by governmental decree.
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FRANK TERRANELLA is an attorney, ham radio operator and short wave listener
(not necessarily in that order).
 
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