'Nick' Radios Being Recalled . . . BY MOTOROLA !

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Johnny Galaga
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'Nick' Radios Being Recalled . . . BY MOTOROLA !

Post by Johnny Galaga »

Today, I received a letter via certified mail from Motorola telling me that they have sued Nicholas DeLuca for selling parts built counterfeit radios. Motorola got my address via a subpoena, so apparantly Nick kept all his customers' contact information on file. The letter says "subpoenaed records indicate that you purchased an ASTRO Saber III and/or XTS Series radio(s) from Mr. DeLuca, either through the Internet service provider Yahoo! and/or eBay auctions..."

The letter demands that I call them and ship them the radio I bought from Nick (a.k.a. watchbuddy or apcosystem) 2-3 years ago on eBay or they will take further legal action ! Is that a bunch of bullcrap or what ?! Has anyone else gotten the same letter ?

What am I supposed to do ? Sit back and get burned for the $1000 that I paid for the radio. Does Motorola have the legal right to do this ? Wouldn't I have to be ordered by a judge to turn over the radio ?

The court case shown on the letter is:

Re: United States District Court for the District of Arizona
Motorola, Inc. v. Nicholas DeLuca, et al
Case No. CIV04 128TUCRCC

The letter lists other eBay names that Nick has used as:

Kickitinn
Radio Hut
Portaradio
thebuyer
Last edited by Johnny Galaga on Thu Feb 10, 2005 6:58 pm, edited 1 time in total.
Analog already is interoperable.

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thebigphish
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Post by thebigphish »

johnny...you gave him a real addy? that's what disposable addresses are for!
Cowthief
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Letter.

Post by Cowthief »

Hello.

I have such a letter also.
I have tried to call Motorola at the number given but got no answer or busy.
Depending on what the judge has ruled Motorola may have legal recourse.
Can you get "burned" on the deal, perhaps.
If, for example, you buy a stolen car, you would have no legal option but to sue the seller, you would have had to have known it was stolen due to the paperwork involved in an automobile.
If you buy a stolen TV from a pawnbroker, the seller would have to make good, not you, as you were in good faith when the purchase was made.
If you were to buy cocaine by credit card and this is not cocaine but bakers sugar, you can have the credit card do a chargeback, but can not expect the seller to make good on the cocaine purchase.
So, it just depends on the case.
I have all the paperwork showing I bought the radio in good faith.
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xmo
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Post by xmo »

This issue has been discussed somewhat in another thread:

http://batboard.batlabs.com/viewtopic.php?t=37817

Humhead suggests returning that thread to it's original topic and continuing the 'letter' discussion here.

Apparently, after receiving these radios from Mr. Deluca, it seems that many of them have been sold for cash at hamfests.

Perhaps later, the same person might have found that they missed having such a radio and bought another - different but similar radio at another hamfest. Of course, this second radio would have a different serial number than the one previously received from Mr. DeLuca.

You know us hams - always buying, selling, trading, bartering...

Anyway, with regard to the letters, it shows their arrogance. People bought these radios in good faith. Motorola should be treating Nick's customers as victims rather than harrasing them. They could apologize that this happened, offer to 'legitimize' the radios for a reasonable depot fee, send them back with a basic flash and a new depot serial number.

They could make their point and make friends of these customers, and even make a few bucks for the depot - all in a single action -BUT - that would require a little common sense and a light on back in Schaumburg.
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alex
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Post by alex »

Here's what I don't understand:

1) Motorola sold Nick the parts to build the radios right? So, Nick paid for the parts, somehow built the radios, and sold them on ebay. Good for him.

2) This also can't really follow the same class as the other DCMA suits that have been out there (like RIAA). RIAA suits show that person A purchases CD and makes a copy, gives it to person B. Both A+B have a copy of this CD.

Now, compare this with the radios. Person A purchase something tangible - a piece of hardware, with software in it. Person B, can't make a copy of this - the property has to trade hands, so the license was already paid for. Almost like selling a used CD. You baught it once, and then resold it.

In the end, If motorola wants the radios back, they should ask for them, state that they will replace the radio with the same model with X feature set, and send the radios back out, OR, give enough credit to purchase a new radio from them.

If you think that someone is going to turn around and dump something they paid anywhere from $800-$2000+ for in the mail, and never see the money again?

Some of these people are police officers, fireman, emt's, people who use this equipment for work - which is what I think motorola is most concerned about - but think about how much they had to work just to get their hands on the equipment.

Just my $0.02.

As someone who sees there starting to be a "awaking sleeping giant" you can all expect to see a lot more stringint moderation/control over the board in the next few days. I have no interest in being in the middle of something...

-Alex
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kg6bki
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Post by kg6bki »

Why dont you tell them if they ask that you already sold it at the fleamarket for cash...unless they come kickin in your front door...



Just my $.02
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~

Post by A-42 »

sold it at dayton!! Im sorry there nothing to take and i dont know the guys name that was at that table :D
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LAC-OPS
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Post by LAC-OPS »

Here's my letter.... hope you can see it clear enough to read... my other post (Motorola ATTACKS!!) was locked so here it is

http://img59.exs.cx/img59/2608/motoletterpage17ld.jpg

http://img59.exs.cx/img59/192/motoletterpage26al.jpg
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HOWARD
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COURT DOCUMENT FROM PACER

Post by HOWARD »

U.S. District Court

U.S. District Court for the District of Arizona (Tucson)

CIVIL DOCKET FOR CASE #: 04-CV-128

Motorola Inc v. DeLuca, et al

Filed: 03/19/04
Assigned to: Judge Raner C Collins
Demand: $0,000
Nature of Suit: 830
Lead Docket: None
Jurisdiction: Federal Question
Dkt# in other court: None
Cause: 15:1125 Trademark Infringement (Lanham Act)



MOTOROLA INC, A Delaware Michael J Vingelli, Esq
Corporation FAX (520)623-9055
pla [COR LD NTC ret]
Vingelli & Errico
33 N Stone Ave
Ste 1800
Tucson, AZ 85701-1415
(520)791-0900

========================

NICHOLAS DELUCA, an individual
dba
Radio Design
dft

========================

DELUCA GROUP, a California
corporation
dft

========================

RADIO HUT CORP, a California
corporation
dft

========================



RADIO COMMUNICATIONS SYSTEM
INC, an Arizona corporation an
entity of unknown type
dft

========================

INSTACOM INDUSTRIES, a
California corporation
dft

========================

EPW COMMUNICATIONS INC, an
Arizona corporation an entity
of unknown type
dft

========================

SHADOW TEAM CORP, a Nevada
corporation and an entity of
unknown type
dft







DOCKET PROCEEDINGS



DATE # DOCKET ENTRY


3/19/04 1 COMPLAINT filed regarding (patent/trademark). Copy of
complaint and docket sent to Washington, DC. (pb)
[Entry date 03/23/04]


3/19/04 2 CORPORATE DISCLOSURE STATEMENT by pla Motorola Inc (pb)
[Entry date 03/23/04]


3/19/04 3 NOTICE by pla Motorola Inc of settlement communications
purs Federal Rules of Evidence:not admissible for any
purpose(copy of letter to Nicholas DeLuca) (pb)
[Entry date 03/23/04]


3/30/04 4 RETURN OF SERVICE EXECUTED summons/complaint personally
served upon dft Nicholas DeLuca, dft DeLuca Group, dft
Radio Hut Corp, dft Radio Communications on 3/24/04 (br)
[Entry date 03/31/04]


3/31/04 5 RETURN OF SERVICE EXECUTED summons/complaint upon dft
Nicholas DeLuca on 3/24/04 (personally) (br)
[Entry date 04/01/04]


4/26/04 6 STIPULATION for permanent injunction by pla Motorola Inc,
dft Nicholas DeLuca (pb) [Entry date 04/27/04]


4/27/04 7 MOTION to dismiss case purs to Rule 41(a)(1) by pla
Motorola Inc [7-1] (pb) [Entry date 04/29/04]


5/5/04 8 PERMANENT INJUNCTION by Judge Raner C. Collins granting
stipulation for permanent injunction by pla Motorola Inc,
dft Nicholas DeLuca; Ordered dft DeLuca and all his
officers, directors, and all those persons or entities
acting in active concert or participation with him and who
receive actual notice of this injunction, are permanently
enjoined and prohibited from: The manufacture, advertising,
marketing, promoting, offering for sale, selling,
distribution, programming or transferring of non-genuine
Motorola radios, parts or equipment, making any
unauthorized use in commerce of any trademarks owned by
Motorola, Make any unauthorized use of any Motorola Radio
Service Software Computer programming software, making any
unauthorized use of any Motorola trademark, trade name,
logo or copyrighted work, Using any logo, trade name,
trademark, or service mark that may be calculated to
falsely represent or which has the effect to falsely
represent DeLuca, palming or passing off radios or other
products as genuine Motorola products, Assisting, aiding,
or abetting any other person or entity from engaging in any
of the acts set forth in above paragraphs; Further ordered
that the Court shall maintain jurisdiction over this
permanent injunction (cc: all counsel) (jkm)
[Entry date 05/05/04]



5/5/04 9 ORDER by Judge Raner C. Collins granting motion to
dismiss case purs to Rule 41(a)(1) by pla Motorola Inc;
Ordered that all parties shall bear their own costs and
fees. [7-1] (cc: all counsel) (jkm) [Entry date 05/05/04]



Case Flags:
TERMED
A0120


END OF DOCKET: 4:04cv128
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HOWARD
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Everyone who bought a radio on Ebay or Yahoo gets a letter

Post by HOWARD »

Everyone who bought a radio on Ebay is getting a letter. The way it looks the records are from Ebay and yahoo's records not Nick's files.
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kv5e
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Post by kv5e »

The central argument that /\/\ is making is that these "whored" radios may not be certified under Part 90 and the IC equivalent and if operated as certified devices represent a possible danger. The IP argument seems to be secondary to the certification argument

/\/\ has a clear plan to go after these radios and their owners. The federal judiciary will most likely support the 1st round.

I suppose if you were using the radios in the amateur service you might argue against the alleged threat to life and safety the radios might possibly present if sued as a possessor.

Is /\/\ going "all in" in this judicial "AZ Hold 'em" poker game?

Who wants to call? :o

kv5e
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alex
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Post by alex »

Here's what I'm thinking.

There are two planned courses of action that could be taken:

First off, Return the radio, make sure that you get a reciept in some fashion that you returned the radio, and document it clearly.

Secondly, we all enter a class action suit against Nick Deluca. We get our money back.

At this point, your fighting a multimillion dollar company, with more legal representation than I could shake a stick at. In the end, the fact that it has made it this far with respect to getting in to court, shows that there is someone somewhere who is listening to Motorola. The letter posted above is a very nice way of saying "hey, give us back the parts." that came from the IP department, and NOT legal.

My question to motorola would be - what would you guys want money wise to make the radio that a lot of us have in our possession Legal.

If I were in most people's shoes, I would spend the amount of money (providing it's not agregious) to then have a legitimate radio, and not be out the 800-2000 that people are going to be out.

I think if we were to take a stance as a class action against Nick, we would be in the best position to gain money back from them, as well as not saying a big FU to motorola, which would not be my personal goal.

As much as it sucks, it in the end might be the "right" thing to do.

Anyone know a lawyer who might want to help us out?

-Alex
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LAC-OPS
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Post by LAC-OPS »

The arrogance is what really gets me.

Here, Motorola, a PRIVATE company is demanding that I send them a piece of personal property, that's LEGAL to possess (despite their "illegal" claims) that I paid GOOD MONEY for, in documented good faith, just because THEY say so.

The "personal and public safety" claim is juvenile and ridiculous at the very least, and where do they get off "instructing" me to throw away $1300??

And then they threaten me with legal action if I DON'T give them my personal property? Sounds very similar to blackmail..

I think Patrick Harrington is having delusions of grandeur and FAR overstates his authority, which undoubtedly ends at the walls of Schaumburg....
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Post by xmo »

I have no problem with them stopping Mr. DeLuca [or anyone else] from 'building' radios - the manufacturer of any product is entitled to his profits. But going after the purchasers is just plain wrong. Again - they should be treating the purchasers of these radios as victims.

They have made a serious tactical blunder in their approach that these parts built radios are a danger to public safety.

The parts in question are genuine Motorola replacement parts - the same parts that are sold for the repair of fielded Motorola manufactured radios.

Assembling a radio basically consists of a chassis & housing, RF board, and controller.

Nowhere in the Motorola basic or detailed service manuals does it say that you cannot replace any combination of these parts at the same time, so - if for example, one had a water damaged radio, and chose to replace the chassis, housing, Rf and controller boards - how would that radio differ in any technical or legal way from the radios Mr. DeLuca assembled?

The only difference would be that you would have a factory tag for the water damaged radio and that Motorola would have received their due compensation for having manufactured said radio.

Once a radio is reassembled, using whatever combination of new and/or previously fielded parts, assuming the radio is aligned in accordance with the procedures in Motorola's published service documentation, the radio's performance will either meet Motorola's published specifications - or else Motorola has a lot of explaining to do to thousands of users who have had their radios repaired by Motorola service shops or the end user themselves.

Suppose a large Motorola customer were to formally approach Motorola on this issue - raise the question that hundreds of their radios have been dis-assembled in the field - new controller boards installed, etc. Suppose they insisted that Motorola either state formally that the published service documentation is correct and that any combination of genuine Motorola parts, when properly aligned, represents no danger to public safety?

That would negate their current position. But what other choice would they have? Take thousands of radios back through the depot for free? Stop selling parts? Re-write all their service manuals? Take all repair business away from end users and MSS's? Not very likely.

This whole thing is a stupid move on someone's part - they're bullying and have no serious intent to ever take a purchaser of one of these radios into a courtroom - the stakes are too high - for them.

They should have offered to align the radios and return them to the end user for an appropriate fee. Depot serial number, basic flash, they get some $$$, they make their point, everybody wins.

Intelligence everywhere - well maybe - but common sense? Not so's you'd notice.
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alex
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Post by alex »

But the question remains:

How were the parts obtained? Legally or Illegally.

THe problem is that if the parts were obtained illegally, there's a question of "right to title." If the property was stolen for example, and then sold, the origional seller had no right to title, or right to exchange that title.

Therefore, your techinically in reciept of stolen property, which was unknown to you at the time.

So you may or may not have proper title to the property for which you possess.

Yes. It does SUCK that you would be out the 1300 bucks - but, if all X # of people get together in a class action against Nick, then you do have an avenue to get your money back.

-Alex
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Post by RadioSouth »

You would think if the components were disassembled to the original configuration (how they were purchased from Motorola in the first place)
there would be no problem. A letter to this effect in place of returning the radio might suffice, someone who has received a nasty gram might try this route and see if it satisfies them.
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xmo
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Post by xmo »

I think it's significant that the letters make no claim that the parts were obtained illegally [i.e. stolen].

They demand the return of the radio as a danger to personal and public safety.

The class action would be fine, but who is going to initiate it? You know the bozo spent the money so there's no real prospect for recovery.

Simple solution.

Sorry - sold it at a hamfest for cash - I appreciate your concerns but I am sure the purchaser is a ham and the proper safety and operation of his equipment is his responsibility under part 97 of the FCC rules. I didn't get his name, but I ever see him again I'll pass along your concerns.
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Post by W4YJQ »

alex wrote:
Therefore, your techinically in reciept of stolen property, which was unknown to you at the time.
I see no mention of any criminal accusations anywhere in the documents I have seen. Motorola did not accuse NICK of theft of this hardware. If you read the judgment handed down by the court there is no stipulation that says NICK cannot offer for sale legitimate hardware. In fact it appears he said I’m sorry and both parties walked away paying there own legal fees. WOW Motorola really won this one at a thousand dollars a minute for their legal team.

A lot of guys bought these radios in good faith with their hard earned money. NICK may have misrepresented these radios but the buyers had no knowledge of this in most cases. That’s what we get when dealing with a snake oil salesman.

As far as suing NICK for your money, good luck. It appears that he is hiding behind several corporations so that may be a role of the dice.

The other thing that troubles me is weather or not e-bay provided private and personal information to Motorola without our permission and without a court order? May be they should be a target of a class action civil suit. Anyone want to start a list of potential plaintiffs?
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Post by Bob »

The other part that people aren't taking into consideration are the Patent, Copyright, and Trademark infringements. Motorola has the right and the obligation to protect their intellectual property and their name. That seemed to me to be the overtone of the letter that I read.

Say you shop around for a supply of toner catridges for your office copier. You find a supplier online who has a price that's too good to be true. Being strapped for cash though, you decide to order a half-dozen from these folks. Three months later, you read in the newspaper that this company was sued by Xerox because they were remanufacturing the toner cartridges and selling them as new OEM cartridges. As part of the settlement, the company turns over a customer list to Xerox. Subsequently, you get a letter, then a knock on the door, demanding that you surrender the counterfeit products. You know what? When they come knocking on your door, they'll have a US Marshal or US Customs agent coming with them. At that point, they WILL seize the counterfeit merchandise.

Just because you paid for it and have proof of ownership, that doesn't mean they can't seize it. The argument is that these counterfeit items should not have been in the marketplace to begin with, and that their presence in the marketplace has artificially altered competition and fair trade.

Stolen Intellectual property isn't a whole lot different than stolen physical property. Whether or not you can prove where you obtained it, it doesn't much matter. Once you are informed that it was stolen, and you received stolen property, you are under an obligation to return said property. If you don't, there can be, and usually are, legal ramifications.

That said, I'm not defending Motorola or advising anyone to give the radios up. I'm not a lawyer, but I did stay at a Holiday Inn Express last night. Quite frankly, the market for Nick radios wouldn't have been there if Motorola hadn't convinced the world that they're the best things since sliced bread and then priced the GD things out of nearly everyone's budgets.
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Post by xmo »

No doubt Motorola leaned on ebay - and it looks like way to much time has passed to file any claims under ebay or paypal buyer protection policy.

I still say it isn't Motorola's responsibility to look after 'personal and public safety'

Maybe just send them a nice "Thank you for your concern, I will immediately have the radio's performance verified by a licensed technician."

"In addition, should I ever be cited by the FCC for interference with any personal or public safety operation I have attached a 'hold harmless' agreement, duly executed by my attorney, absolving Motorola of any responsibility for any such operations and/or FCC citation."
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Post by JAYMZ »

Any which way you slice it.. you are in possesion of a counterfeit and like Bob said.. they have the right to have it seized. From what I read they are askingfor them right now. And it may be quite possible that it is consider a concern for Public Safety because if it malfunctions and Motorola's name is on it.. they can be held liable for the harm it causes.

If you guys do return the radios and want your money back the class action suit is the way to go. You probably won't see much.. but at least you will feel that justice was done. You can't make Motorola pay you for the radio... if the parts that he built the radio with were considered stolen because of the method that they were obtained, Motorola is the original victim. Not you. Yes you are a victim of foul play but a secondary victim. At least they are being nice and making a request for the radios back. They could've gone out and filed charges of possesion of stolen property against everyone on their little list without warning.

So in regards to this.. the whole situation could be a whole lot worse. Return your radios or not.. it's up to you. The whole situation sucks all the way around no matter which way you want to look at it.
JAYMZ

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Post by cgroftmc »

If Motorola is getting records from Ebay about people that purchased radios, my question would be what about all the people that got ripped off by Mr. Dulca and never recieved a radio?

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Post by RadioSouth »

Counterfeit sounds like a stretch being they were built of genuine parts. I'm thinking the crux of this lies in the controller, if Nick was flashing the controllers I can see the IP problem. If he was buying the controllers already flashed with what he was selling them with a statement of dissassembly might fly.
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Anyone who complies with this letter is a dunce. Period.

Post by Sys9000 »

Anyone who is foolish enough to even considering sending in your property to someone without compensation in advance is a dullard and a dunce. I can not believe that anyone on this board is naive enough to be sucked into this and to think that a private company has any authority over you. They have no more authority than any other citizen. Only a court order signed by a judge and not an officer of the court could make such a demand legally. Further there is no legal precedent for claiming that radios built from parts are in fact counterfeit. Further Motorola's Case against Deluca mentioned in the letters has already been dismissed by Motorola and therefore moot. Any attempt to obtain refunds from Deluca at this point will be fruitless. Any legal action that should be undertaken should be against Motorola and Patrick Herrington severably, as he has gone out and bought a gavel and a black robe but he is not a judge and this is an act of harrassment, for which he could be successfully held liable for as well as his employer to the tune of millions in a class action suit against them. Now lets see which one of you will take the ball and run with it to an Attorney Monday. It will need to be done obviously by someone who received such a letter.
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Post by 10-95 »

If you send the radio back you are helping the Motorola legal team build a case against Nick Deluca which is what they hope you will do. If I were to receive such a letter i would toss it in the trash can and forget about it.
They have no authority to take your property, don't be foolish and hand it over for fear of leagal attack, that's what they want, they want you to think thay will attack you. throw the lettter away or keep it as a conversation peice but don't send your radio back, they have a case against Nick Deluca, not against you , you did nothing wrong. It's kind of like buying a knock off of a Nike product at the flea market or on Ebay, would Nike want the knock off you bought, sure , to help bolster their case against the guy who sold it, you did nothing wrong and have NOTHING TO FEAR.





Frank
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xmo
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Post by xmo »

"...They have no authority to take your property..."
____________________________________________

I agree completely, but I am sort of hoping that there is one adventurer out there who is p.o.'d enough to respond:

Dear Motorola,

Thank you so much for your recent letter of [date]

I am shocked and horrified to find that I have been using a radio that has put public safety at risk.

I am greatly concerned that your parts are of such low quality that it is not possible to assemble them in the field into a properly functioning radio. Accordingly, I have taken immediate action to see that no further danger exists.

Upon receipt of your letter, I immediately took the radio in question and ran it through my chipper / shredder. Please find enclosed a bag containing its remains.

Regards,

Your former customer
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Post by RESCUE161 »

What I don't understand is, the letter stated that "Motorola over the past two years has purchased several 'parts built'..." radios.

My question is, why the hell don't they just buy the damn "counterfeit" radios back instead of threatening everyone. They sure have the cash to do it.
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Post by thebigphish »

i have a wood chipper, a bag and the appropriate postage...however i do not have a whored-radio.... if someone wishes to allow themselves to be so browbeaten by moto and wants ME to handle the return....i'd gladly do it.

ofcourse i might just chip up a similar radio and ...

(damn, outside voice again)
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Post by 10-95 »

What next?? A letter for all those parts built Saber 3's like the ones I use??
Or maybe all those parts built MTS radios and Spectra's?? It's kind of like Ford putting a stop to anyone going to a salvage yard and buying fenders for that wreaked Crown Vic you bought at a government auction. I hope Motorola's legal is reading this, they may be lawyers but they ain't gonna do this. If I ever get a letter from them I'll use it as toilet paper then toss it in a flat rate envelope and mail it back to them, and Motorola legal you can beleive it, I will.

Frank
Last edited by 10-95 on Sun Feb 06, 2005 12:56 pm, edited 1 time in total.
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Post by CTAMontrose »

i think the prudent thing for those who have recieved letters is to consult a lawyer FIRST. I for one would be very interested to hear what one has to say regarding this.

To say "oh god the best thing to do is ship your radios back" is just as reckless as "tell motorola to :o themselves"

The letter did NOT say that by sending in your radio, you would be absolved of further legal action.

bottom line, protect yourselves and get legal advice from an ATTORNEY, not just people on a website.
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Post by giantcake »

From reading the letter I think maybe it could be more along the lines of Motorola limiting their liability if anything happens to someone using one of those radios. (i.e. relatives trying to sue Motorola over the 9/11 radio issues.)

In other words, they are giving you fair warning that the Nick radio can't be counted on to save your butt or anyone else's, so don't come crying to them if the radio takes a dump or causes a problem on someone's system endangering others.

Although a bit of a stretch, same can be said for some of the info on the board here. Moto can easily say that modification in any form, outside of their authorized procedures, to a Moto radio, firmware, software, or hardware could cause the earth to reverse it's rotation, yada yada yada...., so you better shut it down before another ice age hits us!

Anyway, although not a legal person, I'd say that no response is better than not telling the truth.

Good Luck!
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spectragod
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Post by spectragod »

Personally,

I never bought a "nick" radio, but........... for those of you who did and got a letter...

I would put that item away in storage, if anyone comes asking say you sold it and never offer that you do have it, bottom line, deny everything, admit nothing and demand proof.

They lost their ass and walked away from Nick, why not make an example out of you? You knew you bought a parts built radio, so in their eyes, it might as well be stolen.

What I want to know is.... the people that bought Nick radio's, depot'd them, are they getting these letters?

Also, how about all the xts5000's from the fire, are those not type accepted? Do they want all those back, are they going to sue the salvage company that THEY sold them too? They should shred this stuff if they don't want it out in the world. Those radio's aren't built from stolen parts, they are factory built and supposedly hack proof, so the only way to upgrade them is to buy factory parts, or be in tight with a FTR.

I would say to send nothing to them, that, in my opinion would incriminate you, at least in M's eyes.

SG
Kilgore: Smell that? You smell that?
Lance: What?
Kilgore: Napalm, son. Nothing in the world smells like that.
Kilgore: I love the smell of napalm in the morning. You know, one time we had a hill bombed, for 12 hours. When it was all over, I walked up. We didn't find one of 'em, not one stinkin' dink body. The smell, you know that gasoline smell, the whole hill. Smelled like... victory. Someday this war's gonna end...

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Cowthief
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Letter.

Post by Cowthief »

Hello.

This letter posted is not the same as the letter I have.
This "new" information simply says that motorola has issue with the copyright, and not a thing about FCC or IC.
In addition, the statement is of such a nature that it no legal "teeth".
As far as having US marshal(s) at your door for having a counterfit toner unit, this has never happened, and will never happen.
Rolex got the list of people who had bought counterfit Rolex brand watch(s).
The Rolex firm settlement from the little stunt was to provide EVERY end user with a new genuine Rolex!
The copyright laws are just what the name says, the right to "copy".
Copy means the writings, to include symbols of an identifiable nature.
You can not, for example, copyright a word, or color, or place.
If someone, for example, takes a picture if the leaning tower of pizza, the picture can be of copyright nature.
If you take the picture, it is yours to do with as you wish.
Weddings are a classic example.
You do NOT want to pay someone to take your wedding pictures, why?
You do not own the pictures, the photo company does.
The photo labs will look on the back of the prints, see the copyright notice and say sorry sir.
Even wal-mart, with its self-serve phototron will have issues, as the paper is encoded now.
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Post by 10-95 »

Beware of TMBM : The Motorola Boogie man!
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Post by DevilDoc »

Here is the question I have.

Did the judge in this case order all radios sold my Mr. Delucia returned to Motorola? I don't see that in the document.

Or is Motorola simply asking for them back under the threat of a lawsuit and using the Ariizona case as a lever to add some weight to there action?

Many here are right. Unless there is a direct judgment to return the radios then you are under no obligation to return them I would think.

If there considered stolen then you would think the Judge in the case would take action and demand the return of the stolen radios.
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Post by Splat »

So, has anyone either contacted Motorola and asked them any questions about this?
Last edited by Splat on Wed Oct 05, 2005 4:37 pm, edited 1 time in total.
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MTS2000des
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Post by MTS2000des »

The one issue I have is Motorola claiming the radios are counterfeit. How can something built from genuine Motorola replacement parts be counterfeit? Sure, the radios themselves were not assembled, tested or marketed by Motorola. Did Deluca mislead his buyers away from understanding that they were "parts built" radios? That would be a question for a jury of 12 to decide. But the true victim there would be the buyers of Deluca's radio, not Motorola, as they are the ones who actually put forth money for a product which was sold under false pretenses.

If I go and buy all the parts from my Toyota dealer and assemble a Camry from Genuine Toyota parts, it is exactly what it is: a parts built Camry. I could not title the vehicle as a TOYOTA nor sell it as such. But for Toyota to claim it is "illegal because we didn't manufacture it" is absurd. So long as I don't misrepresent it, there is nothing wrong with selling such a product.

The IP issue is where Ma M has it's beef. How did was Nick able to put those "whored out" flashcodes together? They can certainly stipulate that one not posesses any software capable of such work and take measures protect themselves just like any other IP owner can. But Microsoft can't take your laptop because it has a pirated copy of XP, they can ask you to delete it and ensure that you do so. They can ask where you bought that laptop from and go after the seller. But if the hardware is legit and not stolen, Motorola has no case.

I really like this crap about "a danger to public safety" so why doesn't Motorola send such letters to owners of iDEN equipment and let them know not to stand too close to police or firefighter when using their Nextel handset because it "might interfere"...

True if you are a ham and bought a VHF or UHF Nick special you can justiify using them as ham gear. Apparently Motorola is retarded about users in the amateur radio service being able to build their own equipment. We are responsible for maintaining our station to high technical standards. But for those who got 800 radios and want them cut on their local PS system, I am sure Ma M has sent out letters to all their system owners with a long list of why they shouldn't allow for such radios on their system. I don't see a problem with that. The Nick radios I have seen were buggy, full of featuers that didn't work, and shouldn't be in the hands of a PS user at all.

Of course I have also seen plenty of new Motorola radio straight from the real Motorola factory that sucked just as bad.

hello Kenwood...
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Post by chipjumper »

I sold mine for a $1 to some stranger at a rest stop. He had Alaskan license plates. I guess I'm free!
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Post by jbxx »

My letter appeared Sat.
As I said in an earlier post, pretty scary.
I will not screw with Mother.
I will call them tomorrow.
My radio was to basicly be a scanner.
Never did the project.
I will return the radio.
J.B.
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Motorola.

Post by Cowthief »

Hello.

If you never did anything with the radio you have no issue whatsoever.
You did not violate the rules, as you never used the software in question.
Yes, Motorola has gotten wild in the legal department, I should know.
I did the spectra project, and had Motorola all up in arms.
Yes, I got one of the letters, however Motorola HAS the "nick" radios.
The people forgot, as part of the settlement from the fiasco I sent the radios to them, I kept only the Motorola MILITARY and RAILROAD radios.
If it does not have an AN/*RC or AAR number, I do not have it.
Yet, the numbnutts sent me this letter?!
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Post by jbxx »

What scares me even more is the fact that
they say I have THREE radios and I only have one!
It is hard to prove the absance of something.
J.B.
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Post by spectragod »

Once again, I would not send anything to Motorola, if you do, potentially this could happen.

Yourself being charged with some trumped up crime, that you will have to prove yourself innocent of.

Yourself as a witness to a lawsuit again Nick by Motorola and you get to testify.... most likely in Chicago, on your nickel.... and you loose your radio to boot.

M knows that hams use their radios for ham use, hence the backdoors into some models for going into ham freq.'s. Most employees at M have high end M gear for their own personal use.... some were parts built, some were caught before it got to the shredder.

They are pissed because someone beat them at their own game, got all the necessary parts together and built their own radio, only in this case that someone built a hundred or so.

M reads this board, I know for a fact, I a sure they are having a laugh at your expense thinking that you are worried about potential legal issues. The bottom line is.... if a judge didn't issue a judgment against everyone who bought a radio to return it (and there are no names other than Nicks in the case), I wouldn't worry about it. At the most I would say to call, see what their intentions are with your equipment and go from there, consult an attorney if need be, but do not send your radio to them!! :o :o

If you are going to give your equipment away, I will give you my address, you can forward it to M after I have you radio, they can come collect it from me. :D :D

SG
Last edited by spectragod on Mon Feb 07, 2005 2:36 pm, edited 1 time in total.
Kilgore: Smell that? You smell that?
Lance: What?
Kilgore: Napalm, son. Nothing in the world smells like that.
Kilgore: I love the smell of napalm in the morning. You know, one time we had a hill bombed, for 12 hours. When it was all over, I walked up. We didn't find one of 'em, not one stinkin' dink body. The smell, you know that gasoline smell, the whole hill. Smelled like... victory. Someday this war's gonna end...

____________
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..

Post by batdude »

this is also being discussed in this thread


http://www.radioreference.com/modules.p ... ic&t=19881
BRAVO MIKE JULIET ALPHA
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IF SOMEONE PM'S YOU - HAVE THE COURTESY TO REPLY.
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Another "forced" recall by Circle-M.....Dog and Po

Post by AEC »

As it's been said and done before in the past, Circle-M has taken yet another leap to the rear with their latest blunder.

Once again, trying to bully and scare people that Motorola knows better, or "they" will come after you...BS!
I for one would love to see a Circle-M jerk show up at my door wearing a badge and demanding I return a radio I own, to them. If they did this, I would have the legal right to make a citizen's arrest and detain that person for a felonious act of impersonating a law enforcement agent.

After reviewing the tissue paper, it's worthless and has no legal power.
I'm no 12 year old baby boy, and Circle-M would have to do better than this to make my knees buckle.

I for one would be happy to join in and sign a class action suit against Circle-M as it would tech them a lesson, not to mention that they are treading on their very own livlihood,and the crap about a danger to life and public safety...really?
My understanding on F.C.C rules is that there are NO public safety frequency allocations in the amateur radio band allocation, so how can "this" radio be a hazzard i the first place?

"Not genuine Motorola"...Hmmmm, Didn't THEY build the parts that went into these radios?
Nick was simply RESELLING them, not advertaing them to be "official" Motorola radios, so THAT point is moot.
Resale has nothing to do with IP rights as everybody resells things, so if nobody else can sue over this issue, neither can Circle-M.
Besides, what IP rights were sold/resold?
I don't recall Nick advertising the sale of modified software, or the sale of the "genuine artice, or their clone/s, so again, this issue is moot.

Demanding I return my property to them at my cost?
I don't think so, NOBODY commands me, and it damn sure is NOT going to start with Circle-M!

Let's see, a $2,000.00 radio, a regular guy making $12.00/Hr, Circle-M legal fees per hour at probably $ 20,000.00...Hmmm not much of a return on an already LOUSY business plan is it?
Not to mention the fact that word of mouth can ruin their reputation faster than bad truck stop food, and you have a recipe for the competition to move right in and take over their "exhalted" throne that has been public safety.
Go ahead Circle-M, sue every cop and firefighter out there that has one of these supposedly "illegal" radios, and I guarantee your company will take a huge stock dump soon afterwards.

If I find out that even one poor "schmuck" here has actually been sued, I'll be the first to videotape the destruction of every piece of Motorola gear I own, and this includes repeaters, just to make a point, and then I'll go out and buy KENWOOD radios and forever be free of the MotoCops and their delerious and deranged minds, not to mention tentacles.
I will be the one to take a stand over such things, I've done so in the past, and will do so again...After all, It's the PRINCIPLE of the matter that's at hand and not the monetary losses.

Not once did Nick represent himself "as" Motorola, so the "illegal" radio is once again.......moot.
I've rebuilt hundreds of Motorola radios, modified even more, so does this make those radios "illegal" and no longer "Motorola"?
I don't think so....just open the darned thing up, it's all Circle-M inside and out.

OR...do we SKATE around this entire topic and place "Like Motorola" on our sale ads?
Sure, it was "originally" built by Circle-M, but it's no longer a Circle-M radio because I repaired it and replaced certain components that were also, by some sheer form of fate, made by Motorola.....Oh wait, I guess even my repaired radio IS a Motorola after all......Naaaa...wake up, just a bad dream.
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Circle M.

Post by Cowthief »

Hello.

I like the Circle M thing.
The trouble is Motorola has been after just about everybody, but one person at a time.
Remember my little trouble with /\/\?
It was not a big deal, after all, it was not them.
This is kind of like the Jewish people before WWII.
This is just a laborer that was taken away, I will tell no one, say nothing.
This is a mechanic that was taken away, I will tell no one, say nothing.
"" ".
When they came for me, there was nothing to say, there was no one left to tell this to.
Yes, the front programmable spectra, what a shame.
Don't say I did not warn you.
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HOWARD
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It's Nicks ethics not his quality!

Post by HOWARD »

I'm still owed money by Nick Deluca and already have an attorney working on the case. Enough said about that. The quality of every Nick Deluca built radio I've seen has been every bit as good as Motorola's radios. One of our radios was a Nick special that worked fine until it was dropped off of a 3 rd floor roof onto the black-top, it was sent out for depot repair and came back with a new updated case and the same serial number...no questions asked...no letters concerning his unique flash code...just flat rate repair with no questions asked. So does the left hand know what the right hands doing at Motorola? Coincidentally the same radio was left on the bumper of a fire truck and found in numerous pieces in a puddle of diesel fuel 4 hours after the call. So I guess M won't be getting that one back! I like Motorola's products but I'm rapidly starting to hate the company...as soon as Kenwood starts building a UHF Apco 25 radio Motorola may end up short a customer.
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.

Post by clavo »

Sorry, I can't help myself:


Monday 7th February 2005

Lexmark loses legal battle over cartridge refills
Declan McCullagh
CNET News.com
October 27, 2004, 11:10 GMT

Talkback
Tell us your opinion
A US-based manufacturer has had a preliminary injunction brought by the US printer company overturned, after it successfully argued its cartridge-refill technology was not in violation of the DMCA




In a closely watched case in the United States involving the Digital Millennium Copyright Act, a federal court has ruled that a small North Carolina company can continue selling a chip that makes it possible to use refilled toner cartridges in Lexmark printers.

A federal appeals court overturned on Tuesday a preliminary injunction that barred Static Control from selling its Smartek chip.

Static, which sells printer parts and other business supplies, has been defending a lawsuit brought by Lexmark, the No. 2 maker of printers in the United States. The suit claims the Smartek chip violates the DMCA, and Lexmark hopes the case will slam the brakes on the toner cartridge remanufacturing industry and compel consumers to buy its cartridges.

Ed Swartz, Static's CEO, said in a statement that the "courts have spoken -- companies cannot abuse copyright laws to create electronic monopolies and take advantage of the citizens of this great country."

The case has gotten a lot of attention because it's one of the first to test the limits of the DMCA, which Congress enacted in 1998 to limit Internet piracy.

Under section 1201 of the DMCA, it is generally unlawful to circumvent technology that restricts access to a copyrighted work or sell a device that can do so.

In court documents, Lexmark has claimed the Smartek chip mimics a technology used by Lexmark chips and unlawfully tricks the printer into accepting an aftermarket cartridge. That "circumvents the technological measure that controls access" to Lexmark's software, the complaint said. But Congress also included exemptions in the DMCA explicitly permitting activities such as law-enforcement activities, encryption research, security testing and interoperability.

Static Control has seized on the last exemption, which permits reverse-engineering "for the purpose of enabling interoperability of an independently created computer program with other programs" and says its creation of the Smartek chip is also protected by traditional fair use rights enshrined in US copyright law.
Bob wrote:The other part that people aren't taking into consideration are the Patent, Copyright, and Trademark infringements. Motorola has the right and the obligation to protect their intellectual property and their name. That seemed to me to be the overtone of the letter that I read.

Say you shop around for a supply of toner catridges for your office copier. You find a supplier online who has a price that's too good to be true. Being strapped for cash though, you decide to order a half-dozen from these folks. Three months later, you read in the newspaper that this company was sued by Xerox because they were remanufacturing the toner cartridges and selling them as new OEM cartridges. As part of the settlement, the company turns over a customer list to Xerox. Subsequently, you get a letter, then a knock on the door, demanding that you surrender the counterfeit products. You know what? When they come knocking on your door, they'll have a US Marshal or US Customs agent coming with them. At that point, they WILL seize the counterfeit merchandise.

Just because you paid for it and have proof of ownership, that doesn't mean they can't seize it. The argument is that these counterfeit items should not have been in the marketplace to begin with, and that their presence in the marketplace has artificially altered competition and fair trade.


Stolen Intellectual property isn't a whole lot different than stolen physical property. Whether or not you can prove where you obtained it, it doesn't much matter. Once you are informed that it was stolen, and you received stolen property, you are under an obligation to return said property. If you don't, there can be, and usually are, legal ramifications.

That said, I'm not defending Motorola or advising anyone to give the radios up. I'm not a lawyer, but I did stay at a Holiday Inn Express last night. Quite frankly, the market for Nick radios wouldn't have been there if Motorola hadn't convinced the world that they're the best things since sliced bread and then priced the GD things out of nearly everyone's budgets.
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Post by Bob »

Clavo, I'll see your article and raise you one. My previous statement said nothing of DMCA.
Friday, April 16, 2004
Xerox confirmed this week that 7200 counterfeit color laser printer toner cartridges worth more than $1.3 million have been seized or quarantined by a number of countries' authorities in the past two weeks.

This follows a global investigation initiated by Xerox Corporate Security and the Office of General Counsel, also involving customs and excise officials from these countries. Xerox notes that the counterfeit toner cartridges were intended for use in Xerox Phaser 780 color laser printers.

The company says that the use of counterfeit toner cartridges results in poor equipment performance, low supply yields, inferior print quality, toner leakage, high cartridge failure rates, and increased equipment downtime--all costing customers time and money.

Xerox urges customers who own Phaser 780 printers to learn how to check the authenticity of their toner by visiting Xerox.com, and says that customers who discover counterfeit toner in their possession should immediately contact the company that they purchased their toner from, for returns and refunds.


Money Matters
"Hundreds of thousands of illegal products, worth millions of dollars, are removed from commerce each year," says Bill Duffy, president and CEO of the Imaging Supplies Coalition, a non-profit trade association. "This is a problem that faces the entire printing industry, and is something that all manufacturers must remain vigilant in fighting to help prevent damage to the ultimate victim--the customer."

Xerox notes that the confiscations occurred at shipping ports in Hong Kong and other international locations, and multiple locations in the United States. It says that about 4800 cartridges were seized in the international locations, and 2400 cartridges have been quarantined in the United States. An additional incident, it says, is currently pending, and is expected to yield an additional 2000 cartridges, bringing the expected total to 9200 cartridges worth more than $1.6 million.

The company says that it is leading the charge against counterfeiting and other black-market activities, and has a team of professionals who investigate and identify the individuals and companies that participate in these illegal activities.

"Xerox takes an aggressive stance against counterfeiters, and is dedicated to ensuring and protecting customer value through ongoing efforts to identify, investigate, and prosecute counterfeit operations," says George Parry, Xerox Corporate Security investigator. "These latest seizures and quarantines underscore the efforts we take, on a worldwide basis, to protect our customers from counterfeiters."

Ernest Leong of Bytes Document Solutions--previously known as Xerox SA, concludes: "Xerox worldwide, including SA, endeavors to do everything possible to combat counterfeit products, and to safeguard our customers wherever possible."
http://www.pcworld.com/news/article/0,aid,115721,00.asp
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Post by Fuel4300 »

So far it would seem that Motorola is getting their list of names/addresses from the transactions facilitated by either Yahoo! or Ebay. When I had my (mis)dealings with Nick I had emailed him directly because he had been recomended by a few friends.

I have no recieved a letter nor has anybody I know that dealed directly with Nick.

Can anyone confirm this?

Mike
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Post by xmo »

Does one hand know what the other is doing? Not a chance!

There is just no light on back there. They just aren't thinking.

I still remember when I started for M. I was given a territory consisting of several states. I was surprised to find almost no activity in one of them. I asked around. It seems that Motorola had pissed off a guy who wound up highly placed in state radio.

For the better part of TWENTY YEARS he saw to it that the state bought from anybody else. M sold not a single base, mobile or portable to a state agency. A lot of the locals went along as well.

Just ONE guy.

I venture that some of the folks that bought Nick radios did so to play with, as ham radios etc - and at the same time work for agencies that buy MILLIONS of dollars of Motorola product.

Screw one of those guys out of $1000 of his personal funds and I guarantee it will cost Motorola THOUSANDS of times that along the way.

Guaranteed 100% without a doubt! [ But what the hey, the IP lawyer Bozo will get his incentive check!]

There are more ways to screw them than they can ever fix. Just an example - I know of one case where a company sent in a part for warranty replacement - a part from a pager. The office girl transposed a couple of the digits of the part number. When the replacement came - the guy that delivered it had to ask where the loading dock was. I think the office girl may have made the same 'mistake' a few more times.
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