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.

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.

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).

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.

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.

Entitled The Commercialization of Amateur Radio: The Rules, The Risks, The Issues, the document offers guidelines to assist radio amateurs and anyone wishing to utilize the capabilities of Amateur Radio in understanding the FCC Rules that prohibit communications in which the amateur has a pecuniary interest, including communications on behalf of an employer.

I have read the document—albeit only once—but so far I can find nothing to criticize or quarrel with in what is says. I do, however, find fault with the League’s sidestepping the issue of Amateur Radio and emergency responders.

In this regard, the report tells us nothing we don’t already know: In an emergency, licensed amateurs who are emergency responders may use Amateur Radio to support their efforts. The ARRL guidelines make clear that these hams may not take part in non-emergency communications (drills, conversations, etc.) that benefit their employer.

Here’s what the ARRL has to say:

The FCC’s Report and Order, FCC 06-149, 21 FCC Rcd.11643, released October 10, 2006, clarifies the rules for employees by stating that “Section 97.113 does not prohibit amateur radio operators who are emergency personnel engaged in disaster relief from using the amateur service bands while on paid duty status. These individuals are not receiving compensation for transmitting amateur service communications; rather, they are receiving compensation for services related to their disaster relief duties and in their capacities as emergency personnel.”

This is not an “exception” to the “no communications on behalf of an employer” rule – it is simply recognition of the public benefit of Amateur Radio stated in the Basis and Purpose section of the Rules at §97.1(a) quoted above. Thus, paid emergency personnel who are licensed amateurs and who find themselves needing to use amateur radio in disaster relief operations can rely on the Commission’s statements that they may do so.

However, this clarification from the FCC does not give blanket permission for operators to communicate on behalf of their employers. It applies only to “emergency personnel engaged in disaster relief.” It does not apply to training exercises or drills. It does not apply to employees of entities that may encounter business disruptions but which are not in the business (either for-profit or non-profit) of providing disaster relief.

Some Amateurs believe that communications on behalf of one‟s employer are allowed if the business is not for profit, or if the communications are transmitted outside the employee‟s regular working hours – when he or she is, so to speak, “not on the clock.” The FCC‟s Rules do not distinguish between for-profit and non-profit organizations. Nor do the Rules say anything about the employee‟s working hours or paid duty status. Rather, the rule prohibits all communications on behalf of one‟s employer, save for two very narrow exceptions [97.113(c) and (d)] quoted above.

Nothing new there, though a few who didn’t believe it coming from my mouth (or Web site) may accept the ARRL’s word on the issue.

I will write a more in-depth analysis over the weekend, I don’t think I will discover anything that will be a problem. These guidelines, however, no nothing to reduce the need for the limited exemption to 97.113(a) that we intend to present on behalf of emergency responders who are also hams and want to participate in Amateur Radio training activities.

Or as one person told me, “I am a ham and the ACS coordinator for my agency, but I can’t participate in our ACS training net.”

That is what we are working to change.

However, since there is no hurry, I want to see about making minor changes before releasing it to the amateur community and filing with the FCC.

My main concern is about the meaning of the word “regular,” as in “regular communication.” The FCC accepts this to mean “not every day.” Our concern is that the amateur community would understand a prohibition against doing something “regularly” would include scheduled drills—as in quarterly, monthly, etc. We mean “not every day” or “not constantly.” How do we deal with this?

One key provision of our proposal is it would make clear that paid responders could participate in both actual emergency (legal now) and training (not legal now) communications.

If you have any thoughts or ideas, please share them with me.

However, since there is no hurry, I want to see about making minor changes before releasing it to the amateur community and filing with the FCC.

My main concern is about the meaning of the word “regular,” as in “regular communication.” The FCC accepts this to mean “not every day.” Our concern is that the amateur community would understand a prohibition against doing something “regularly” would include scheduled drills—as in quarterly, monthly, etc. We mean “not every day” or “not constantly.” How do we deal with this?

One key provision of our proposal is it would make clear that paid responders could participate in both actual emergency (legal now) and training (not legal now) communications.

If you have any thoughts or ideas, please share them with me.

Personally, I see the recent FCC action upholding PART97 as the best thing that has happened to amateur radio in a very, very long time.
 
I’m glad to see EMCOM whackerism get a serious setback BEFORE our spectrum can be taken over by lobbying groups that we cannot possibly compete with.
 
We should be thanking the FCC because the ARRL was right behind the EMCOM camel, energetically helping it shove its nose right under the tent.
 
If you care about amateur radio, join other thinking hams in telling N5FDL to take a long walk down a short pier, before he screws the pooch and contributes to the loss of our VHF spectrum.
 
Remember what happened to the Aussie hams with their UHF spectrum? - It can happen here, just as well. In the weeks before the FCC action, hospital associations here in the US were beginning to lobby for the spectrum we were letting them use, just exactly as it happened down under.
 
We can all thank our lucky stars that the FCC was not asleep at the switch, and acted in a timely manner.

 

The good news is that if such widespread illegality was taking place, in some cases for more than a decade, and no obvious damage occurred, why not change the rule? Hams have already shown they can deal with this issue without it becoming a problem.

The argument that says, “if we don’t stop this” ham radio will be taken over by commercial interests, is competely bogus. This is merely FUD (fear/uncertainty/doubt) being spread by mostly well-meaning, but underinformed, people. And there are other rules that prevent this regardless.

There is a sense of panic in some organizations right now. Some worry that avoiding “business use” of amateur radio will cripple existing emergency communications training programs. It some cases, it very well may. But, it doesn’t have to.

• I know of an employee group that has decided not to do an in-house Christmas fundraiser using Amateur Radio this year, for example. My suggestion is for the employees to volunteer for a non-employee group (like the organizations they are helping) and do the project under their auspices. But, this has to be honestly done, not just a ruse to try to fool the FCC.
• A very large corporation with a dozen or more club stations at its facilities should change the name of its ham group by making it sound less like a company emergency team and be more like a regular ham club. Then BE more like a regular ham club, doing hammy things that also contribute to preparedness. Do that and they can still be emergency trained and not violate 97.113(a). The goal of providing communications during a real emergency will continue to be met.
• Local ARES groups should use this as an opportunity to provide replacements for employee hams at their “jobs” and using those operators in other functions and at other locations. Just because you are an employee at the hospital doesn’t mean you can’t be a volunteer ham at the fire department. Local groups an organize drills that provide necessary training to employee hams outside the workplace.
• A group that had cancelled a Simulated Emergency Test, scheduled for later this month, took a deep breath and realized they could find non-employee volunteers to test a hospital communications plan.

I am NOT suggesting that anyone try to dodge the rules. But, there are many ways to avoid “business communication” while still maintaining preparedness.

I realize the FCC’s “get tough” policy on 97.113(a) is forcing some unwelcome and unwarranted changes in how some groups do things, but it should not detract from our ability to perform our emergency communications mission. It does make it more difficult, however, which is why we need to change the rule.