By David Coursey, N5FDL
Emergency Coordinator
San Joaquin County (CA) Amateur Radio Emergency Service
(title provided for identification purposes only. does not imply ARRL endorsement of my views)
Executive Summary
The FCC has recently stated that professional public safety workers--including firefighters, police officers, EMTs, and other personnel--may not use Amateur Radio to communicate on behalf of their agencies except during actual emergencies.
This means that a firefighter who coordinates a city's RACES program cannot during normal times use Amateur Radio to talk with volunteers about the program. Nor may the paid professional participate in emergency drills or any other training involving amateur radio and his or her agency.
This prevents amateur operators from training for actual incidents in a realistic manner and in so doing unreasonably restricts the ability of Amateur Radio to serve the public.
This damages homeland security at a time when threats continue to increase and cannot be allowed to continue unchallended.
We plan to file a Petition for Rule Making to provide a very narrow exception for these activities, allowing hams and the agencies we serve to work together as closely as possible.
Such a rule change is in the best interest of Amateur Radio, public safety, and the citizens many Amateurs have sworn an oath to protect.
ARES/RACES Should Be Partially Exempt from "Business Communication" Prohibition
Tom is a firefighter who got his ham radio license to support his department's ham radio volunteers. It seemed like a good idea for the firefighter who works with the group to also be able to train with them on the air, and help the volunteers to better understand his department's methods and procedures. Sadly, he cannot legally participate in their training.
Tom doesn't understand why the FCC prohibition against "business communication" applies to his fire department activities. Neither do we. Public service is not a 'for-profit' business
. And even "for-profit" hospitals are required, in all their aspects, to serve the public need.
For many years, firefighters, police, nurses, and weather forecasters--all licensed amateurs--have participated in emergency training with other hams. In some instances licensed hams have put unlicensed professionals "on-the-mic" during training events.
Apparently none of this has ever been legal, but the rule seems never to have been enforced. Now, the FCC is warning hams against such behavior.
Don't believe it? Then read on!
Public safety workers--police officers, firefighters, doctors, nurses, EMTs, paramedics, emergency managers, and anyone else, who is paid to protect the homeland, could face FCC action because of their "illegal" efforts to serve the public using Amateur Radio.
Whenever one of these professionals uses ham radio as part of their work, such as in drills, exercises, and ARES/RACES activities, they are violating the FCC's prohibition of "business communication" on amateur frequencies.
Even casual conversation, such as discussion of a meeting or event with a group volunteer, is a violation of the rule. Nor does it matter that the conversation takes place while the professional is off-duty. It also does not matter who the professional is communicating with or the public service value of the communication.
Or how incidental the communication is to the "business" of the employer.
Hospitals, police departments, fire departments, and emergency management agencies at all levels are just as much a "business," in the eyes of the FCC, as the local hardware store. They deserve no special treatment because of their lifesaving mission.
For example, employees who work for sponsors of volunteer Amateur Radio programs, such as ARES, RACES, or ACS, cannot legally discuss the group's activities over the air with the groups' volunteer members. And it does not matter whether the professional is working at the time or not--having an agency as your employer means the FCC treats you as an employee at all times.
No ham wants to see Amateur frequencies taken over by business users or for communication better handled through other radio services. But, for Amateur Radio to function "When All Else Fails" we need the support of professional responders, some of whom value and respect what we do enough to become hams themselves.
Unfortunately the FCC discriminates against them.
A status offense
It is important to recognize that what is being described here is a status offense--something that is illegal because of the "status" of the offender. For example, a 17-year-old purchasing tobacco or alcohol is violating the law only because of his or her status as a minor.
In this case, the status of the ham radio operator as an employee is what creates the offense. A non-employee doing the same thing would not violate the FCC's rules. Thus, people who dedicate their lives to public service are turned into FCC offenders because of their professional "status".
Many hams and emergency response personnel are doubtless shaking their heads at this point, thinking the FCC could not be so pointy-headed as to actually interpret and enforce its rules as I have just described. But, their interpretation is apparently just as strict as it sounds.
My e-mail from the FCC
In June 2009, I received an e-mail from Laura Smith, an FCC attorney charged with Amateur Radio enforcement.
She was responding to a May 2009, blog post on
N5FDL.com in which I described a hypothetical event in which hams who are employees of a hospital participated in an on-air Amateur Radio emergency communications exercise, but as volunteers for a county government-sponsored group and on their own time. This appeared to me to avoid the "business communication" prohibition.
I was wrong.
"Simply put, a hospital drill that includes any amateur employees of the hospital is a violation of Section 97.113(a) (3). It does not matter if the amateur is “off duty” or on their “lunch hour”; it does not matter if their job description does not include the so-called operation of the amateur radio; it does not matter if they are not getting paid specifically for the drill; it does not matter if they sign a statement indicating that they are doing this strictly as a volunteer. I trust I am making this clear, it does not matter what machinations you come up with, there is no loop hole to the rule. If they are a hospital employee, they may not use the radio on behalf of their employer – period."
In the post, I suggested that the FCC might use its discretion and not consider this to be prohibited business communication, considering the negligible "business" value to the employer and high "public service" value of the event, plus its voluntary nature. I also speculated that the FCC might not be interested in such a violation; perhaps considering the actual purpose of the drill was to prepare for an emergency, not generate "business" for the hospitals involved.
Again, I was wrong.
"Indicating that the FCC will not enforce its rules is patently incorrect. Should I receive a complaint regarding an amateur employee =operating the radio at the hospital during a drill, I will (emphasis hers) follow up. And, should it be determined that a violation of the rules has occurred, the individual will be subject to any enforcement action the Commission deems appropriate."
"If the amateur community wishes for a rule change, I suggest they file a Petition for Rule Making and provide a concrete suggestion as to how they want the rule changed. Assuming that they can somehow work around the rule is foolish at best and inviting enforcement action at worst."
But, wait, there's more
Bill Cross, W3TN, a staff member in the FCC's Mobility Division, and Ms. Smith, spoke at the FCC Forum on Saturday, May 16 at the 2009 Dayton Hamvention.
The following is a portion of an item that appeared on the ARRL Web site, describing Cross' remarks:
"A topic that keeps popping up, Cross said, is business use of Amateur Radio, specifically transmitting messages on behalf of an employer." Section 97.113 answers this question straight on: 'No amateur station shall transmit communications for hire or for material compensation, direct or indirect, paid or promised, except as otherwise provided in these rules.' There are two exceptions. There are exceptions for teachers who are using Amateur Radio as the control operator of a station in an educational institution as part of a classroom thing and control operators of club stations in certain cases. A station is also not allowed to transmit communication in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer. There is an exception to that rule that allows you to transmit communications that are commonly referred to as "swap nets," but eBay seems to have reduced the need for these nets. And you're not allowed to transmit communications on a regular basis which could reasonably be furnished through other radio services."
"Cross said that Section 97.113 is in the rules for two reasons: It meets a statutory requirement and it is there to protect your frequencies from becoming the business radio alternative voice overflow, or 'BRAVO Service.' Because your spectrum is so valuable, if you let users such as businesses, TV stations, the National Weather Service or other users -- be they for-profit or non-profit -- use your frequencies to meet their communications needs, your frequencies will become their frequencies. All it takes is an allocation proceeding with the FCC, and your spectrum is gone. And you will be left whining about it in Internet chat rooms."
It is interesting that Cross used the National Weather Service as an example. So far as I know, the only uses of Amateur Radio that involve NWS are storm spotting and volunteer reporting of weather conditions.
Is Cross saying that those lifesaving programs should end? Is he suggesting that NWS should spend a billion dollars to build its own radio system for these purposes? If not hams, who would be submitting these field reports?
The FCC Seems Of Two Minds
In researching the issue, I found interesting information in an earlier Report & Order dismissing a request to liberalize 97.113.
I sent an e-mail to Ms. Smith asking how she can reconcile her earlier comments (reprinted above) with item 52, from a Report and Order released October 10, 2006 (WT Docket No. 04-140):
52. Mr. DiGennaro also requests that we amend Section 97.113 our Rules, which prohibits “[c]ommunications for hire or for material compensation, direct or indirect, paid or
promised,” by amateur stations, 227 to clarify that amateur licensees who, by virtue of their employment, are directly involved in facilitating relief and recovery in times of disaster are not prohibited from effecting emergency communications using amateur radio. 228 We conclude that the proposed rule change is not necessary, however, because Section 97.113 does not prohibit amateur radio operators who are emergency personnel engaged in disaster relief from using the amateur service bands while in a paid duty status. 229 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. 230
The R&O includes these footnotes: 227 See 47 C.F.R. § 97.113(a)(2); see also 47 C.F.R. § 97.113(a)(2) (prohibiting “[c]ommunications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer”).
228 See Nelson DiGennaro Comments at 3-4.
229 See 1999 Order, 14 FCC Rcd at 20600 ¶ 9.
230 Id.
In return, I received an e-mail from Mr. Cross, which reads as follows:
Section 97.113(a)(3) states: No amateur station shall transmit communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer. The rule was adopted by the Commission in 1993. See Amendment of Part 97 of the Commission's Rules to Relax Restrictions on the Scope of Permissible Communications in the Amateur Service, PR Docket No. 92-136, Report and Order, 8 FCC Rcd 5072 (1993). Among other things, this rule implements the definition of the amateur service in the international Radio Regulations which is: "a radiocommunication service for the purpose of self-training, intercommunication and technical investigations carried out by amateurs ... interested in radio technique solely with a personal aim and without pecuniary interest." Ms. Smith's statement "...there is no loop hole to the rule. If they are a hospital employee, they may not use the radio [to transmit messages] on behalf of their employer – period," therefore, is correct.
The bureau Order that you point to is consistent with the rule. It addressed a questions as to whether an amateur radio operator may use an amateur radio station to transmit messages "while in a paid duty status."
The irony of the request is that there never has been a rule that addressed whether an amateur radio operator could or could not use an amateur station "while in a paid duty status." For example, employees of Boeing (there are 9 Boeing amateur radio clubs in the FCC amateur service licensee database), Motorola (22 clubs), or IBM (10 clubs) that have amateur radio stations at their facilities may be "in a paid duty status," i.e., they are "on the clock," on their lunch hour or break, "at work," or other clearly "employment" situation, and use the station for ham radio chit-chat, working DX, operating a special event station, or other non-employment activity without violating the rule.
The rule prohibits "transmitting a message on behalf of an employer"--not using an amateur station "while in a paid duty status." Applying this rule to common "disaster relief" situations, an employee of the Red Cross, for example, could use the amateur service to transmit health and welfare message on behalf of individuals that have been relocated to a shelter--but not messages on behalf of the Red Cross; a police office could use an amateur station to call a tow truck on behalf of a disabled motorist if he or she so chose-but not for office police communications (which I doubt the police department would want to be heard by anyone monitoring the amateur bands anyway); a Domino's pizza delivery employee could use an amateur station to make a phone patch reporting a house on fire or an accident, even if they had a cell phone in their pocket, but not to take orders or coordinate delivery on behalf of the Domino's store.
As the Commission noted in response to a recent inquiry from a US senator,
"While the value of the amateur service to the public as a voluntary noncommercial communication service, particularly with respect to providing emergency communications, is one of the underlying principles of the amateur service, the amateur service is not an emergency radio service... The prior [prohibited communications] rule was broader, and prohibited amateur stations from transmitting "any communications the purpose of which is to facilitate the business or commercial affairs of any party." Moreover, the rule does not draw any distinction based on the station operator’s duty status at the time of the transmission. Thus, Commission staff correctly interpreted the rule (that hospital employees cannot transmit communications on behalf of the hospital).
Where the conclusion that using an amateur station "while in a paid duty status" somehow allows control operators to transmit messages "on behalf of an employer" is puzzling because transmitting message on behalf of an employer has been prohibited for over 15 years and would be inconsistent with the definition of the amateur service ("A radio-communication service ... carried out by amateurs, that is, duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest.") In the situation you inquire about, the hospital should make arrangements for non-employees to operate the amateur station.
From other e-mails we have received on this subject, I expect a request to allow licensees who are hospital employees to use the amateur service to transmit messages on behalf of their employer would be strongly opposed by many other licensees.
I am not sure how many hams really want to prevent licensed amateurs who in an emergency would be able to legally operate an amateur station at the hospital, fire station, etc., from training with other RACES/ARES members ahead of the emergency.
It is a maxim in public safety that "we train as we play," meaning that training should be as realistic as possible. I really don't see who would object to that, but I am certain some will.
Enter the ARRL
Following up on Cross' comments at Dayton, the ARRL has begun efforts to inform the Amateur Radio community about what types of communications are and are not legal.
The ARRL is working quickly to finalize a policy for distribution to the Amateur community, apparently feeling heat from the FCC.
While I do not know--and the ARRL committee is still discussing--what will come of this, I cannot imagine the League will stray too far from what Ms. Smith outlined to me.
If that is the case, the ARRL will tell hams that what many of them have been doing for years, with the very best of intention, is illegal.
Will the League tell us that?
• The ARES group at a national laboratory near me cannot legally exist--all the members are lab employees! Who get their ham radios from the Lab.
• A fire captain who discusses that evening's RACES meeting on the air is a violator. Because he is an employee, he cannot participate in a RACES net, even if he is the RACES coordinator.
• A nurse who is a licensed amateur might be able to operate the hospital's ham station during an actual emergency, but could not legally participate in a training exercise.
I hope that instead of telling hams what they cannot do, the League will petition the FCC for a rule change to permit these important activities.
What you can do
• Tell League officials--especially your region's director--listed near from front of QST every month, that you want the FCC's rules changed to allow close cooperation between hams and emergency agencies. If emergency professionals want to become hams, they should be supported not turned into violators.
• Support a rule change when one is proposed by making supporting comments to the FCC. Talk this issue up with your fellow hams and the agencies we serve.
• Visit n5fdl.com and sign-up to receive more information about this important issue.
Hams and emergency professionals need to work together as closely as possible and the FCC must stop standing between them.
Thank you for taking the time to read this lengthy report. Please feel free to send your
comments and suggestions to me.
We appreciate your support.
FCC Interpretation of "Business Communication" Hurts Public Safety
using ham radio for public use
Linear Mode
