FCC Proposed Rulemaking about paid employees and emergency drills

The prohibition in 97.113(a)(3) keeps employees from being compensated for their use of HR. If employees want to participate, under this NPRM, they need to be on their own time.

Nothing in 10-72 addresses "compensation" or changes that prohibition.

Joe

 

Care to quote from the NPRM exactly where it states that an employee has to be "off the clock"?

Given the examples you already provided about the ARRL HQ (or club stations as actually stated in the rules) and teachers which are quoted in Footnote 14 on Page 3 ........

"We note that the Commission has carved out other narrow exceptions to the prohibition on transmission of amateur communications in which the station control operator has a pecuniary interest. See 47 C.F.R. § 97.113(c) (permitting control operators who are employed in teaching positions to transmit amateur communications as part of classroom instruction at an educational institution), (d) (permitting the control operator of a club station to accept compensation for transmitting telegraphy practice or informational bulletins under certain conditions)."

It would seem the more reasonable interpretation of the revised rule and how it will be enforced that participation in drill by employees is yet another example of a "narrow exception" of the general prohibition on transmission of amateur communications in which the station control operator has a pecuniary interest.

 

You need to understand that 97.113 has two parts here. (A)(2) deals with "pecuniary interest", and (A)(3) deals with "compensation". The FCC has them somewhat convoluted too, from this footnote.

A person can be compensated, yet have no pecuniary interest in the communication. A person could have a pecuniary interest, yet not be compensated.

In the past, (A)(2) was interpreted to mean "communications with a pecuniary benefit for the licensee or his employer", and (A)(3) was "money or materials given for handling the communications". It is easy to see that teachers and ARRL employees have no "pecuniary benefit", but they can be paid, under the exemption. The exemption would not have allowed the ARRL to solicit donations or memberships, or sell magazines, nor would it have allowed a teacher to solicit donations for the school.

Under the new interpretation, the ARRL ops really are illegal, since they are handling communications on behalf of their employer. Same with some of the communications by teachers.

The new FCC interpretation is just wrong, and has opened up a can of worms, for everyone.

Joe

 

Joe,

I would contend that the employers in these drills most definitely have a pecuniary interest in the communications these operators will conduct which is also part of the current Part 97.113 rules. The blanket exemption request by the AHA for drills conducted for accreditation purposes and example of a pecuniary interest since their accreditation is at stake. The nuclear power plant example I previously gave is another example since their very operating license is dependent on proving they have a functional Emergency Response Organization and a workable emergency response plan of which effective primary and back-up communications form a part. Chemical plant and refineries are required to have the same type of ERO's as a condition of their state permits. All three are prime examples where the employers will benefit from amateur radio operations which this NPRM will allow with little or any restrictions. I am sure there are MANY more instances that could be discussed. And yes.....I still contend that an employee who is being paid to provide this service on behalf of their employees who will profit have a pecuniary interest both because they are being compensated AND because their employer's business will be materially enhanced and promoted by the successful AR operations their employees provide.

 

I do not concede any of the above, but just for argument's sake, what "pecuniary benefit" does a county receive by having an employee (off the clock) run a drill for them?

If you think there is no pecuniary benefit to a county, then their employees certainly should already qualify to participate in drills.

It's a real stretch to tie any sort of "pecuniary benefit" to a simple HR drill of any sort. I think you would have to show me that one existed, IOW, if the drill was NOT conducted on HR frequencies (or at all), would it make any difference to the "bottom line" of any of these organizations?

Joe

 

The three examples I provided should be clear enough.

Nuke Plant needs to have a functional ERO and EP Plan. AR radio may be part of the mix. It already is at many plants though currently manned by volunteers by 97.113 requirements. You do poorly enough at a drill (or series of drills) the NRC could revoke their operating license.

Hospital has to prove for accreditation purposes they have a functional EP plan. AR radio part of their chosen back-up communication plan. It is cheaper than redundant Part 90 equipment so they save money meeting this accreditation requirement by using AR. No required back-up comms... accreditation requirements not met...no accreditation...no insurance...no insurance ...no hospital.

Chemical plants and refineries..same issues as hospitals...proves a functional EP with back-up comms at the lowest possible cost. A requirement of continued operation by state and federal permits.

In all three cases AR volunteers can and do provide these services but that isn't "good enough" for those entities now pushing for the changes we see now. They want their employees to provide these services as opposed to volunteers.

 

And....if you don't believe the "doomsday" scenario concerning the nuke plant example I provided all you have to do is look to history. The inability of Shoreham Nuclear Plant to have their ER plan approved by the state of NY and CT (since a portion of the evacuation area was also in CT) is the reason the multi-BILLION dollar investment in the construction of that plant came to naught (even though they completed successfully low power physics testing of the reactor and were willing and able to go online)

 

There is no evidence that this is the case, that HR is even needed for accreditation. Our local hospital here is accredited, yet has absolutely no ties to HR, and no backup part 90 system.

If hundreds of hospitals nationwide can be accredited without HR involvement, then adding an HR drill adds no improvement in that accreditation, hence no pecuniary benefit.

The problem with your argument is that you feel it is obvious. It is NOT obvious to me that HR makes any difference at all in accreditation status. IF you can show me where it is REQUIRED to be used, then you might have a case. Barring that, it is just another part of preparation.

Joe

 

Are you saying that lack of an HR drill caused this? I would like to see that.

 

I suggest you read the request letter from the AHA for the blanket waiver. THEY are the ones claiming they "need" AR radio to meet their accreditation requirements not me.

 

No the lack of AR did not cause the Shoreham Plant problems....the lack of an approved ER plan did as was stated.

But if comms provide one of the requirements that must be met to have an approved plan and a plant chooses to use AR radio as their back-up comms the inability to have effective back-up comms will negatively affect the grade a plant gets on any of their graded drills and could negatively affect their ability to have continued operations at the plant.

 

You are assuming a lot of things. In order for the comms to have any "pecuniary benefit" there needs to be a link between the comms, and a pecuniary benefit. You are saying there "might" be a link. But there may be none.

I honestly know of no nuclear power plant that uses HR as a necessary back up. Are you aware of any plants that would not pass accreditation simply because they conducted no HR drills?

Joe

 

If you read their request you will see that they feel there is no pecuniary benefit to the employer, or the ham. Their argument is that it will advance the public interest to allow this.

It is clear that if HR is not mentioned as part of the backup plan, that HR doesn't have to be implemented. In that case, I think you would agree that a hospital that didn't have HR in it's backup plan could use HR during a drill, since by your definition the pecuniary benefit would no longer be there.

The FCC has redefined 97.113(A)(2) in such a way as to prohibit all communications on behalf of an employer, so whether or not there is any pecuniary benefit is of no concern to the FCC today. The problem with this interpretation is that it hasn't been that way since at least 1993, and it makes other communications on behalf of an employer prohibited, also.

Joe

 

Joe,

I previously posted information that both Vermont Yankee and Salem/Hope Creek as two examples that use AR radio as part of their established and approved Emergency Response Plans. I also offer Point Beach and Ginna as other examples of a plant that employs AR radio as part of their ER plan. You can search Google just as easily as I can to get more examples if you like.

You are also confusing terms...there is no accreditation issues for nuclear plants except in the arena of INPO Accreditation of their nuclear training programs. What is at stake for nuclear plants is the NRC requirement that they have an approved Emergency Response plan and successfully demonstrate its effectiveness every two years in a graded drill which is observed by the NRC and involves not only the plants but local and state governmental agencies. They run multiple drills a years preparing for the biannual graded drill.

As far as the AHA Blanket request....yes..."they" believe that the DA-2259 interpretation does not "apply" to what they are requesting. But unfortunately the FCC already said in DA-2259 "The Commission's Rules, however,specifically prohibit amateur stations from transmitting communications "in which station licensee or control operator has a pecuniary interest, including communications on behalf of an employer." emphasis is the FCC's.

That is the reason they then set up the waiver process to allow this exemption for government sponsored drills. Don't you find it curious that the AHA asks for a blanket waiver from something they don't believe applies to their situation? Why not ask for a interpretation that bolster their contention rather than as to be excused from a rule that doesn't "apply" to their situation? IMHO the AHA is WRONG...the ruling does apply but they want an exemption from the rules.

But regardless this all has been covered in great detail in this and the AHA Blanket Waiver thread. I suggest you read them both in their entirety as this is old ground. I only sought to bring "new" info to this thread which was ....Don't expect any help from the ITU based on the responses I got to my emails.

 

They ask for the waiver because that is the process. They say right in their filing that they are convinced that the FCC has misinterpreted its own regulations. But if that is the way around the rule, then that's what you comply with. They are requesting the waiver despite the FCC's flawed interpretation.

Well, that is correct. We don't follow ITU rules, we are governed by the FCC. Our nation is independent and can make their own rules. We follow treaty guidelines, which obviously allows great latitude to individual countries, as it should.

Joe