Couldn't have said it better, but even taking this into account the FCC still would say the former definition would be illegal if the radio is 'capable' of tran

Couldn't have said it better, but even taking this into account the FCC still would say the former definition would be illegal if the radio is 'capable' of transmitting outside the ham bands. Even a crystal based radio is capable of transmitting outside the ham bands by simply swapping the crystal.