ARRL Comments on FCC Omnibus R&O

Actually, Jonathan, it appears the ADA DOES, in fact, apply to content…but only as it relates to activities of state and/or local governments. The Federal government (including the FCC and most of the Executive Branch…of which the FCC (under the Department of Commerce) is a part) has apparently exempted itself from such provisions.  

Nice.

That is, a under the ADA, a state or a local government must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless it can establish that the requirements are necessary for the provision of the service, program, or activity. The state or local government may, however, adopt legitimate safety requirements necessary for safe operation if they are based on real risks, not on stereotypes or generalizations about individuals with disabilities. Finally, a public entity must reasonably modify its policies, practices, or procedures to avoid discrimination. If the public entity can demonstrate that a particular modification would fundamentally alter the nature of its service, program, or activity, it is not required to make that modification.  So, even here, there's lots of loopholes.

The only ADA issue that the FCC now seems to be concerned with relates to it imposing standards on common carrier providers (so-called "Telephone Relay Services"), which enables a person with a hearing or speech disability to access a telephone system and communicate with persons without such a disability.

So, it would appear you are correct…the provisions of ADA don't apply to Amateur Radio or Amateur Radio licensing…yet. However, I believe that all it would take is a letter to a sympathetic Congressman or Senator from a person (or persons) so displaced to shed light on the blatant discrimination now ongoing in the Amateur Service.

And, as I have also freely admitted, whether or not such a protest (or a legal challenge) becomes anything more than a political embarrassment to the sitting Administration remains to be seen.

However, I'm still waiting for your legal curriculum vitae.  It was noticeably absent from your latest post.

 

Hmmm, wonder where that was aimed? Doesn't relate to anything on this thread.

 

With all this talk about the ADA I have to chime in.

I highly doubt anyone is going to successfully take on the Morse code testing requirement on the basis of violating the ADA. Take for example a person wanting to get a driver license. If they cannot pass the vision test without "reasonable accommodation" then they cannot drive. Reasonable accommodation usually comes in the form of allowing corrective lenses. Now, imagine a person that has vision so impaired that they cannot walk down the street without a cane or guide dog. Do you think such a person should be allowed to drive because of the ADA? Of course not, they would be a hazard to themselves and others.

So far "reasonable accommodation" as it pertains to Morse code testing has come in such forms as a listening or sending test, a decode by blinking light test, or a decode by feel test. If someone can argue that "reasonable accommodation" would include decoding with the assistance of an electronic device then that would be the end of the test. People would come into the testing session with their MFJ Pocket Decoder and take the test. I imagine that some VEs would even allow testers to borrow their own. If you can read the text on the dot matrix screen as it rolls by then you pass.

If you want to kill Morse code testing by the Americans with Disabilities Act then all you have to do is show that reasonable accommodation includes electronic decoders. Then show that such electronics are so pervasive that even bothering to perform the test would be a waste of time since now every one can pass.

I think that taking that stance is quite unnecessary. The Morse code testing has been argued away because of many other reasons. It would be much more productive to argue the other points such as arguing that unlike a person that cannot pass a vision test for a driver license, a person that cannot pass a Morse code test is not going to be a hazard to people on the radio.

I guess that people forget that the ADA argument was used before, and it successfully brought the end of all but the 5 WPM test. That test remained, according to the FCC, only because of international treaty. So, where does that put us now?

 

The international treaty requirement for Morse testing has now gone the way of the dinosaur.  And the FCC requirement that is STILL perpetuating that requirement (nearly 17 months after it was dropped internationally) now needs to (quickly) go that way as well.

Clearly, you are correct when you point out that someone who cannot see (or hear) properly, or who is otherwise not able to physically operate a motor vehicle in a safe manner should not be given a driver's license. Likewise, someone who is physically unable to land an airplane should not be given a pilot's license, either.  Each is an excellent example of the clear potential of someone becoming a hazard to themselves or to others (with life threatening consequences!) if such a license grant were to be made.

But, I fail to see how these examples are in any way comparable to someone being given full privileges in the Amateur Radio Service simply because they are physically or mentally unable to pass a test for Morse.  To my knowledge, nobody has yet died (or caused bodily harm to others) on our Ham Bands as a result of them NOT knowing "The Code".

Clearly, in this day and age of type-accepted radios and computer-equipped Ham Stations, perpetuating a "must pass" government-imposed test to copy Morse by ear in order to obtain full and complete access to a public resource like Amateur Radio is arbitrary and capricious at best, if not legally discriminatory at worst.  Morse is simply a holdover from another age of radio that has long since become just one more way we Hams communicate.  And maintaining a government test for Morse in the 21st Century is about as absurd as forcing us all to now take tests to decode Packet or PSK-31 chirps by ear for "full" access privileges as well.

Whether or not such blatantly discriminatory license practices fall under the ADA, they still remain a very real barrier to persons who, for whatever reason, can't pass a Morse test. All they are accomplishing at this point is to keep otherwise qualified people OUT of Amateur Radio.  And, certainly, for many crusty curmudgeons still clinging obsessively to such bogus "lid filters", these arbitrary and discriminatory license practices suit them just fine.

But to my way of thinking, for our federal government to perpetuate such arbitrary and discriminatory license practices in a public radio service in this day and age is a national disgrace, even if it is not (yet) illegal.  What's more, such disgraceful practices need to be quickly changed if we are to avoid "exclusive clubbing" ourselves right out of existence.

73,

Keith
KB1SF / VA3KSF

 

No, not really. The dinosaur is not optional, it is gone. The testing requirement is optional with the administration, and the overwhelming majority of the world's amateurs are still in countries that retain the requirement for at least some operations.

Last I heard, about 20% of the world's hams no longer have a code requirement. One in five.

 

I think you are confused about what "optional" means. The requirement for Morse code testing, per ITU rules, is gone. The relevant section now states that Morse code testing is optional, as in it is no longer a requirement. You are trying to split hairs when it doesn't really help your position.

I find the statement about the percentage of Amateurs that are still in countries that require Morse code testing rather amusing. The percentage of Amateurs in the world that live in the USA is somewhere between 50% and 70% depending on whom you ask. When the FCC comes around to making the NPRM a rule then the percentage of Amateurs that still have a Morse code requirement will be somewhere around 20%.

Another point you seem to neglect is what that percentage was three years ago. It was zero percent in 2003, it's now 20% in 2006. What do you suppose that percentage will be in another three years? I suspect at least 50% if not really close to 100%.

Switching gears....
I was curious about how the ADA applies to the licensing of Amateur radio so I decided to peruse the law. I found nothing in there that seemed to apply to Amateur radio. There was some text about licensing for aircraft and automobiles, and some about use of commercial radio and telephone services, but I saw nothing that seemed to apply here.

I'd like someone that thinks that the ADA relates to Amateur radio licensing to point out which section applies. I am not a lawyer but it does seem to be quite a stretch to make the ADA apply.

 

As I noted earlier, it appears the ADA would, in fact, apply to Amateur Radio…but only if Amateur Radio was being regulated by state and/or local governments. The federal government (including the FCC and most of the executive branch…of which the FCC (under the Department of Commerce) is a part) have apparently now been exempted (or have exempted themselves) from the law.  

That is, under the ADA, a state or a local government must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless it can establish that the requirements are absolutely necessary for the provision of the service, program, or activity.

The state or local government may, however, adopt legitimate safety requirements necessary for safe operation if they are based on REAL RISKS, not on stereotypes or generalizations about individuals with disabilities. Finally, a public entity must reasonably modify its policies, practices, or procedures to avoid discrimination.

If it were a state or local government entity, I believe the FCC would have an extremely hard time now proving it's arcane achievement-based, incentive licensing scheme (not to mention Morse testing) are "absolutely necessary" for full access to our Ham Bands.

Unfortunately, the only ADA-related issue that the FCC now seems to be concerned with relates to imposing standards on privately owned common carrier providers (so-called "Telephone Relay Services"), which enables a person with a hearing or speech disability to access a telephone system and communicate with persons without such a disability.

Now, whether what the FCC is doing by perpetuating their clearly discriminatory license structure for the Amateur Service is prohibited under other federal laws (such as those relating to equal opportunity and/or equal access to public resources or activities) is anyone's guess.  

73,

Keith
KB1SF / VA3KSF

 

Since there are more hams in Japan alone, than in the U.S., the 50% figure is not valid, much less something higher. (Somebody is asking the wrong person.) The U.S. is a player in the international AR game. NOT the only one, not even the dominant one. We are a minority, gentlemen, and we should recognize that. And there is nothing wrong with it.

 

I looked up the numbers so I'll correct my statements. There are approximately 3 million licensed Amateurs in the world. About 20% in the USA (650,000) and about 20% in Japan (550,000). You say 20% are in countries that no longer have Morse code testing. So you say the FCC should keep the Morse code testing since the majority of other countries in the world still have Morse code testing. Let's discuss that for a moment.

On one hand we have the USA, an independent nation, that is free to interpret the ITU requirements as it wishes. Now that the ITU has allowed a nation to grant full privileges to Amateurs without testing for Morse code it comes down to the FCC to determine what is best for Amateurs, the Amateur Radio Service, and the nation as a whole, as it pertains to licensing those Amateurs. It has become apparent, given the basis and purpose of the Amateur Radio Service, that Morse code testing no longer has a place.

On the other hand we have the USA, as a member of the global community, has the freedom the determine whether or not Morse code has a place in Amateur radio license testing. Given the trends over the last three years of the ITU dropping the Morse code testing requirement there have been 20% of the Amateurs in the world that no longer fall under a Morse code testing requirement.

What would you say if tomorrow Japan announced that it no longer was going to test for Morse code? That there is still only 40% of the Amateurs that fall under a no Morse code testing license structure? What if another dozen or so smaller nations make a similar announcement? Well, we should keep Morse code testing because only 60% of Amateurs fall under a no Morse code testing license structure?

To point out that 80% of Amateurs still fall under a Morse code testing structure means that you have to recognize the fact that number was 100% just three years ago. A little bit of advice, you might not want to point that out in the future to defend your position because it will only be turned against you.

 

Jim,

You need to do some more homework.  The overwhelming majority of "Hams" in Japan are so-called "Fourth Class" operators. Essentially, this is Japan's No-Code "CB".  

There are four classes of Ham licenses in Japan.  The First and Second classes would be roughly equivalent to our General and Extra Class licenses.  These licensees have access to all the ITU frequencies for the Amateur Service (with no license class or mode based sub-bands). The only difference between the two classes is that Second Class operators are limited to 200 watts output.

Third Class licensees are NOT required to take a Morse test. Yet they are granted low-power access (50 watts) to HF (Ham frequencies above 18 MHz and below 8 MHz.

Fourth Class operators are also NOT required to take a Morse test.. And they, too, are granted low power (10 watts) access to HF frequencies between 21 MHz and 30 MHz as well as low power access (20 watts) to VHF and UHF frequencies.

So, you might say that Japan has kept the Morse testing requirement…and it also has dropped it.  As the overwhelming majority of Hams in Japan are Third and Fourth Class operators, I would tend to list Japan in the "no code" column.

In reality, many countries around the world license their Hams in much the same fashion…granting lower-class licensees access to broad swaths of the HF and VHF/UHF spectrum, but then limiting them to low power.  The FCC would do well to follow this lead when they ultimately ditch their current incentive licensing nonsense.

73,

Keith
VA3KSF / KB1SF

 

So Keith, how does the FCC go about enforcing the regulations regarding these low power stations?  How does the amateur community "self police" the low power operators?  Would you be able to distinguish the difference in my signal at your QTH if I were running 10 watts as opposed to 100 watts?  Or 1,000 watts?

We would have to rely on the honor system.  And if these low power restrictions were not adhered to, it would defeat the purpose of having them in effect.  Safety, the primary basis for power restrictions, would be thrown out the window.

Impractical at best.  How many amateurs adhere strictly to the 200 watt power limit on 30 meters?  I saw a fellow in another thread openly admit that he "fires up the amplifier" for the rare ones on 30 meters.  How about 60 meters?  How many amateurs do you think take the time to get an estimate of their ERP from their particular antenna when operated on 60 meters?  I wager most just dial up the power to 50 watts on their panel meter, using a tone into a dummy load, and just commence to operate.

Replacing the current nonsense with different nonsense is no solution.  At least most everyone is familiar with the current nonsense.

 

Enforcement is "hard" so let's throw out the idea of license class dictating maximum power output.

That gives me an idea...

Let's throw out the idea of driver licenses. Since so many people drive without a license, or an expired license, let's not bother. I mean how do you tell if the person that just sped by at 30 mph has a little piece of plastic with their name and picture in their back pocket? Let's do the same with concealed firearms, because it's "hard" to enforce those rules. I could go on.

No matter the license scheme or what you are trying to license there will always be those that don't follow the rules. That doesn't mean you just throw out the rules. It also doesn't mean you don't attempt to create rules in the best interest in people's safety. When it comes down to it many things are on the "honor system". How do you know the person waiting at the stop light in front of you holds a valid driver license? How do you know the person you just had a conversation with on 20 meters wasn't running a 3 kW amplifier? Or if that person gave their own callsign?

 

To which I now ask you...how many times have YOU ever run a red light at an intersection, or exceeded the speed limits on the highway, or taken a short cut across a parking lot to get to another street?  All of those activities are quite illegal.  But my hunch is that each and every one of us has been "guilty" of those "crimes" at one time or another.

I've always found it fascinating how we Americans tend to pass more and more laws and then write more and more regulations in the fervent hope that, somehow, more laws and more regulation will completely eliminate scofflaws.  

And, the FCC's Part 97 is yet another classic example of this over-the-top, over-regulated, “everyone is a crook” multi-layered, approach to things.

On the other hand, if you compare and contrast all the “thou shalt not” verbiage in Part 97, with the far more simple and positive approach to the way most other countries in the world (such as Canada) treat their Radio Amateurs, the differences absolutely leap off the page at you.

That is, Part 97 is written in such a way that, unless something is specifically enabled, then it is prohibited.  On the other hand, Canada’s governing documents for Amateur Radio…the Radio Information Circulars (the RICs as they are called)…are written in such a way that, unless something is specifically prohibited, then it is enabled.  

And I think the HUGE differences in the size and the scope of the regulatory verbiage required to administer the Amateur Service in each country based on those two different approaches to regulating speaks VOLUMES about the regard each government has about the trust and integrity of its licensees in the Amateur Service.

Moreover, it would appear that Industry Canada has now come to the realistic conclusion that no amount of systemic “safeguards” will completely prevent scofflaws from illegal operation.  And, all one needs to do is look at the growing list of (predominantly Extra and Advanced Class) bums that have come to our own Mr. Hollingsworth's attention that even WITH all the FCC's over-regulation in Part 97, it is apparently STILL not enough to prevent such boorish behavior.

Ours is SUPPOSED to be a self-policing Service.  And, regardless of the type and amount of regulations on the books, in the end, it all comes down to each individual Ham's desire to protect the integrity of our Amateur Service.  Industry Canada has chosen to rely far more heavily on the integrity of every Amateur Radio Operator to “do the right thing” rather than to arbitrarily assume (as the FCC apparently does via their volumes of regulatory “overkill”) that every one of us is a crook who bears watching at all times.

73,

Keith
KB1SF / VA3KSF

 

The Erratum to the R&O should be published tomorrow (Tuesday) in the Daily Register on the FCC web site.

Synopsis: We may continue to use Pactor 3 on all bands EXCEPT 80 meters, where they still have not provided a frequency range for 97.221, permitting a station under "local or remote control" (PMBO) use of Pactor 3. The expansion of SSB on 80 meters has inadvertently deleted the 97.221 subband on 80 meters. ALL digital transmissions should now be below 3600 KHz, and for Winlink 2000, they will be only P1 and P2 except for emergency communications.

 

A PMBO is not under local or remote control, it's an automatic controled station interigated by a station under local or remote controll.

This means 2 things, inside the automatic subbands they can use the bandwith alowed for datamodes, outside the automatic subbands they are limited to 500 hz.

synopsis: humans can use wideband data modes on all cw/data bands, winlink2000 is limited the automatic subbands for their wideband use.