First off, the FCC website is wrong on one point. The search warrant is required where the government wants to search your house or property. It doesn't matter if it is civil or criminal. Any first year law student knows that. So that is misinformation. See, that didn't take long to find something wrong....I'm sure there is more.
47 U.S.C. 303(n) Both Section 303(n) of the Act, and the Rules which implement the Act, grant the right to inspect
MOST installations. What is most? I don't know. I would argue I'm not most.
Now, the FCC has claimed its authority for a warrantless search on its website. At some point, they will pull this crap on someone and the Supreme Court will hear the case and the FCC will lose. My position is still the same, you are the government and you want to search my home...that is a 4th Amendment issue....get a search warrant....pound sand. Slap me with a fine, I'll fight it and I bet $1,000,000 I win.
Here's the kicker, the Supreme Court has made a decision on this, but it didn't directly relate to the FCC. The Gomers at the FCC have not done their due diligence. I'll hide behind the Camara decision in 1967. In fact, I'm keeping this next to my transmitter. Talk about making a field agent's head spin when his boss his tell him one thing and the Supreme Court (his real boss) is tell him something else. His head might explode. I'll giggle as he hands me the fine and I hand him the case to read in the car.
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LoginWhy wouldn't the do it if they can get away with it? It makes their job easier. The government does this all the time, they throw something out there and they hope it is Constitutional. If it isn't, what happens to them? Nothing. So why wouldn't they continue to do it until the Supreme Court tells them to stop. If I was in their shoes, I would do the same. Even though the FCC is wrong, I don't blame them for doing it.
See guys you must remember the people making the rules at the FCC are not lawyers. They don't know or understand the law and the Constitution. I would be surprise if most have never read a single case or know where to find a case. Be smarter than them. I tend to believe my schooling, previous case law and law professors before I believe the FCC about the law. Call me weird......
I'm no lawyer and this is not legal advice so consult with an attorney.
I guess I write this like I'm going to be transmitting miles and miles...I won't. I will make every effort to comply with the law 100%. But, I'm always prepared for problems that may arise.
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Login"The FCC claims it derives its warrantless search power from the Communications Act of 1934, though the constitutionality of the claim has gone untested in the courts. That’s largely because the FCC had little to do with average citizens for most of the last 75 years, when home transmitters were largely reserved to ham-radio operators and CB-radio aficionados. But in 2009, nearly every household in the United States has multiple devices that use radio waves and fall under the FCC’s purview, making the commission’s claimed authority ripe for a court challenge."
“It is a major stretch beyond case law to assert that authority with respect to a private home, which is at the heart of the Fourth Amendment’s protection against unreasonable search and seizure,†says Electronic Frontier Foundation lawyer Lee Tien. “When it is a private home and when you are talking about an over-powered Wi-Fi antenna — the idea they could just go in is honestly quite bizarre.â€
"George Washington University professor Orin Kerr, a constitutional law expert, also questions the legalilty of the policy."
“The Supreme Court has said that the government can’t make warrantless entries into homes for administrative inspections,†Kerr said via e-mail, refering to a 1967 Supreme Court ruling that housing inspectors needed warrants to force their way into private residences. The FCC’s online FAQ doesn’t explain how the agency gets around that ruling, Kerr adds.
