N5FDL Amateur Radio

As promised, I am posting a PDF of the Petition for Rule Making filed with the FCC by the Amateur Radio Policy Committee seeking relief from provisions of 97.113(a) that the FCC has threatened to enforce against paid emergency responders who are also licensed radio amateurs.

The petitioners are Gordon West, WB6NOA; Tom Blackwell, N5GAR; and myself.

Here is the text of the paragraph we propose be added to 97.111, which describes communications permitted in the Amateur Radio service. Specifically, we are proposing that the following be made permitted communication:

(6) Transmissions necessary for disaster relief or emergency response,
including training exercises, planning, drills or tests, without regard to
whether the amateur operator has related employment, where the
transmissions are for the exclusive use of amateur radio operators for
noncommercial purposes.

There are also two minor additions to 97.113 to make it consistent with the change we are proposing to 97.111.

Why is this necessary? FCC rules allow paid emergency responders to use Amateur Radio to support emergency response and disaster relief, but prohibits its use during training. For example, a paid emergency manager who is a licensed ham cannot legally participate in on-the-air training with the agency’s ham volunteers. Or to even have a casual QSO about the agency’s programs!

Our proposal is intended to make such training and conversation (planning) legal, allowing these dedicated professionals to make full use of their skills, including amateur radio.

I am posting this Friday night for listeners to my interview on The RAIN Report. I will be adding additional information on Saturday afternoon. Please send any comments and questions and I will do my best to answer them.

Just after I posted the last piece, I received a response from the FCC regarding whether ongoing events—scheduled nets, for example—could be granted a waiver from 97.113. Here’s the response:

Activities such as the “regular monthly drills” and “two weekly nets” involving hospitals and county agencies you describe are afoul of 97.113(a)(5)…”Communications, on a regular basis, which could reasonably be furnished alternatively through other radio services.”   
 
Why don’t you put these communications on Part 90 channels instead of trying to twist and skirt the part 97 rules?  The waiver process always has been open—it isn’t new.

No, waivers are not new. And, yes, the FCC can grant any waiver it sees fit. But, won’t in this case. And if they aren’t new, why the Public Notice? Tease us with waivers that will rarely be granted?

Let us remember that the waivers I was asking about would have allowed a city RACES coordinator (paid staff) to check into the weekly RACES net, which is not legally possible at this time.

The continued insistence on hams using Part 90 equipment and frequencies makes me wonder. I have considered the possibility that some within the FCC want public service and emergency communications on Amateur Radio to be as limited as they can possibly be.

Update on Wednesday, October 21, 2009 at 01:02PM by David Coursey, N5FDL

Here is a link to a PDF of the Public Notice the FCC released on Tuesday.

I was encouraged to see that the FCC will be considering waiver requests from government organizations (only) that wish to hold events that would otherwise violate 97.113 because of employee participation. This is an improvement in the current mess—or may be—but it depends on the details.

For example, the Public Notice (below) seems to describe “one-up” events only. I have requested a decision on whether ongoing events, such as a weekly net, will also be granted waivers. I will report back as soon as I hear for the FCC on this important issue.

A cumbersome waiver process does not substitute for a new rule that permits participating in emergency training by professional responders who are also licensed amateurs.

It is also interesting to note that the Public Notice was issued a week after our petition was received by the Commission. We wanted to wait until we received our receipt back from Washington before posting the petition online. I expect to do that over the weekend.

Here is the public notice:

 

PUBLIC NOTICE
Federal Communications Commission
445 12th St., S.W. Washington DC 20554
News Media Information: 202-418-0500
Internet: http://www.fcc.gov
TTY:  1-888-835-5322

DA 09-2259

Released:  October 20, 2009

AMATEUR SERVICE COMMUNICATIONS DURING GOVERNMENT DISASTER DRILLS

Transmissions by amateur stations participating in government disaster drills must comply with all applicable amateur service rules.  While the value of the amateur service to the public as a voluntary noncommercial communications service, particularly with respect to providing emergency communications, is one of the underlying principles of the amateur service [1],  the amateur service is not an emergency radio service.  Rather, it is a voluntary, non-commercial communication service authorized for the purpose of self-training, intercommunication and technical investigations carried out by licensed persons interested in radio technique solely with a personal aim and without pecuniary interest.[2]

State and local government public safety agencies occasionally conduct emergency preparedness or disaster drills that include amateur operations.  Some entities, such as hospitals, emergency operations centers, and police, fire, and emergency medical service stations, have expressed interest in having their employees who are amateur station operators participate in these drills by transmitting messages on the entity’s behalf.  The Commission’s Rules, however, specifically prohibit amateur stations from transmitting communications “in which the station licensee or control operator has a pecuniary interest, <add emphasis> including communications on behalf of an employer.</end
emphasis>” [3]

Given the public interest in facilitating government-sponsored emergency preparedness and disaster drills, we take this opportunity to provide a clear process for requesting a waiver, and the information that we require in order to consider granting such a
request.[4]   Waiver requests should be submitted to the Wireless
Telecommunications Bureau by the government entity conducting the drill, and must provide the following information:  (1) when and where the drill will take place; (2) identification of the amateur licensees expected to transmit amateur communications on behalf of their employers; (3) identification of the employers on whose behalf they will be transmitting; and (4) a brief description of the drill. We emphasize that the filing of a waiver request does not excuse compliance with the rules while that request is pending.  The waiver must be requested prior to the drill, and employees may not transmit amateur communications on their employer’s behalf unless the waiver request has been granted.

In an actual emergency, the Commission’s Rules provide that an amateur station may use any means of radiocommunication at its disposal to provide essential communication needs in connection with the immediate safety of human life and the immediate protection of property when
normal communication systems are not available.[5]   In those
circumstances, rule waiver is not necessary.

For further information regarding matters discussed in this Public Notice, contact William T. Cross of the Wireless Telecommunications Bureau, Mobility Division, at (202) 418-0680, William.Cross@fcc.gov.

By the Chief, Wireless Telecommunications Bureau; Chief, Public Safety and Homeland Security Bureau; and Chief, Enforcement Bureau.

-FCC-

Footnotes:

[1] See 47 C.F.R. § 97.1(a).  See also Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks, Order, EB Docket No. 06-119; WC Docket No.
06-63, 22 FCC Rcd 10541, 10576  111 (2007) (noting that the amateur radio community played an important role in the aftermath of Hurricane Katrina and other disasters).

[2] See 47 C.F.R. § 97.3(a)(4).

[3] See 47 C.F.R. § 97.113(a)(3) (emphasis added).

[4] See 47 C.F.R. § 1.925.

[5] See 47 C.F.R. § 97.403.  See also Amendment of Part 97 of the Commission’s Rules Governing the Amateur Radio Services, Report and Order, WT Docket No. 04-140, 21 FCC 11643, 11667  52 (2006) (clarifying that amateur radio operators who are emergency personnel may use their amateur radio stations while in paid duty status, but not addressing the prohibition against transmitting messages on behalf of an employer).

We are nearing completion of our Petition for Rule Making to amend 97.113. We are on a fourth or fifth draft of the petition itself. We also now have two different wordings—very different but equivalent in function—for the new paragraph we’d like to add to the rule. It would allow hams who are paid emergency personnel to participate in all emergency-related activities without regard to their employee status.

I have sought comment from a few people concerning which of the two wordings will work best. I am not ready to release them at this time, but expect to next week sometime. We are looking at ways to get broad feedback on our proposal while still fast-tracking filing of the petition itself.

I continue to receive some really odd “workarounds” for what we now understand 97.113 to be, namely a barrier to professional emergency responders participating in emergency training with their fellow hams. Some of this would be funny, except that it’s well-meaning hams trying to get past an issue that really shouldn’t be.

Here is an example:

If the activity provides a service that benefits the community, then it is permissible to use employees and staff.  For instance, if the health department is doing an influenza exercise where we are ACTUALLY DISPENSING vaccine to the community, then it is permissible for employees to operate ham radio.  However, if the exercise is just “pretend” and no real vaccines are administered, then you must use volunteers only. Or in a “disaster drill”, you must use volunteers only.  This is because the drill is purely a “practice” for the agency and does not provide an immediate service to the community.

If a net is being conducted by a club, then it is permissible for employees to participate. This applies to the hospital net as it is planned as a club activity….Therefore, county amateur radio activities can have employee participation IF IT IS ANNOUNCED AS A “CLUB ACTIVITY.”

Neither of these interpretations of 97.113 will fly with the FCC—I am absolutely certain of it. I am NOT trying to make fun of the people responsible for these interpretations. They are well-intended attempts to comply with the law, without actually changing very much. 

My guidance stands: If in doubt, don’t. If you have to “reach” to make something fit within 97.113, it probably doesn’t comply. The best approach, at present, is to have employee-hams who work in emergency response (broadly defined) not be involved in emergency exercises until further notice.