[paranoidrobot]

My understanding is that operating on a frequency requires that you be transmitting on it, not whether the device is capable of transmitting on it.

For instance, you can own one of those cheap handheld Baofeng radios that is capable of transmitting on all sorts of frequencies, so long as you never transmit (and you don't listen to any forbidden frequencies)

Happy to be corrected, but all the resources I've dug up say that it doesn't matter whether the device is capable of transmitting or not.