Request By:
Mr. Paul F. Tinkle
News Director
WYMC Radio
P.O. Box V
Mayfield, Kentucky 42066
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
WYMC Radio is in the process of up-grading its News Department with some of the most updated "on the scene" reporting equipment. Thus you would like to place a scanner in your mobile unit. It would receive police broadcasts only. It would not transmit.
You ask whether or not the radio station could legally put a scanner in your mobile unit. The answer is "Yes."
Prior to the enactment of Senate Bill 264 in the Regular Session of 1978, KRS 432.570 prohibited any person, except a member of a police department, from having in his or her possession or in an automobile or other vehicle, any mobile radio set or apparatus capable of either receiving or transmitting radio or other messages or signals within the wave length or channel now or which may hereafter be allocated by the federal communications commission for the purpose of police radios. The statute contained certain exceptions. KRS 432.570 (4) (b) read: "nothing contained in this section shall prohibit the possession of a radio by: a commercial or educational radio or television station, licensed by the federal communications commission at its place of business.
Clearly at this point, KRS 432.570, as amended in 1976, Chapter 166, Section 1, would not permit a scanner on a mobile unit of a commercial radio station.
However, Senate Bill 264 amended KRS 432.570 by enlarging the exceptions to the prohibition just mentioned. Thus under the 1978 amendment it is provided that nothing contained in KRS 432.570 shall prohibit the possession of a radio by an individual who possesses such a radio, provided it is capable of receiving radio transmissions only and is not capable of sending or transmitting radio messages, at his place of residence. This exception also includes "newspaper reporters and photographers, " except that it shall be unlawful to use such radio to facilitate any criminal activity or to avoid apprehension by law enforcement officers. (Emphasis added). A violation of this section shall, in addition to any other penalty prescribed by law, result in a forfeiture to the local law enforcement agency of such radio.
It is our opinion that the amendment would permit your radio station to place a scanner in your mobile unit. We are speaking of radio equipment that is capable of receiving radio or other messages or signals within the wave length or channel allocated by the federal communications commission for the purpose of police radios. However, the radio station must be careful to observe the proviso in Section 1, subsection (4) (c), to the effect that it shall be unlawful to use such radio equipment to facilitate any criminal activity or to avoid apprehension by law enforcement officers. In our opinion the phrase "newspaper reporters and photographers" is broad enough to include news reporters of the entire news media, i.e., television, radio, newspapers, and magazines. If the exception were narrowly restricted to newspaper reporters, it would be unconstitutional, since it would be arbitrary. See Section 2, Kentucky Constitution. Moreover, "it has always been a recognized power of courts in the construction of statutes to delete or interpolate words to prevent an absurd consequence or to resolve an ambiguity in order to carry into effect the spirit, purpose and intent of the lawmakers. "
Fidelity & Columbia Trust Company v. Meek, 294 Ky. 122, 171 S.W.2d 41 (1943). The intent of the lawmakers must prevail over the literal sense and precise letter of the language of the statute. Here, in Senate Bill 264, the legislature intended, we believe, to make an exception, as to radio equipment capable of receiving police radio broadcasts, in favor of the news media. Thus the policy and purpose of the statute will be considered by the courts in determining the meaning of words used.
Kentucky Region Eight v. Commonwealth, Ky., 507 S.W.2d 489, 491 (1974).
The 1978 Amendment becomes effective June 17, 1978.