FCC Proposed Rulemaking about paid employees and emergency drills

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There has been much debate on the issue of employees and emergency drills. The FCC hopes to clarify the rules and allow more flexibility with this amendment. Lets hope that it does.

A Proposed Rulemaking was released today containing amendments to Section 97:113 of the Amateur Service Rules regarding using paid employees in government sponsored emergency training drills.

You may visit the original document here: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-45A1.pdf



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Before the
Federal Communications Commission
Washington, D.C. 20554


In the Matter of

Amendment of Part 97 of the Commission's Rules Regarding Amateur Radio Service Communications During Government Disaster Drills )
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WP Docket No. 10-72


NOTICE OF PROPOSED RULEMAKING

Adopted: March 18, 2010 Released: March 24, 2010

Comment Date: (30 days after publication in the Federal Register).
Reply Comment Date: (45 days after publication in the Federal Register).

By the Commission:


I. INTRODUCTION

1. In this Notice of Proposed Rulemaking, we propose to amend the Commission's amateur radio service rules with respect to amateur radio operations during government-sponsored emergency preparedness and disaster readiness drills and tests. Although public safety land mobile radio systems are the primary means of radio-based communications for emergency responders, experience has shown that amateur radio has played an important role in preparation for, during, and in the aftermath of, natural and man-made emergencies and disasters. Current rules provide for amateur radio use during emergencies. At the same time, the rules prohibit communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer. While there are some exceptions to this prohibition, there is none that would permit amateur station control operators who are employees of public safety agencies and other entities, such as hospitals, to participate in drills and tests in preparation for such emergency situations and transmit messages on behalf of their employers during such drills and tests. Accordingly, we propose to amend the rules to provide that, under certain limited conditions, amateur radio operators may transmit messages during emergency and disaster preparedness drills, regardless of whether the operators are employees of entities participating in the drill.

II. BACKGROUND

2. One of the fundamental principles underlying the amateur radio service is the "[r]ecognition and enhancement of the value of the amateur service to the public as a voluntary noncommercial communication service, particularly with respect to providing emergency communications." Further, the rules state that "[n]o provision of these rules prevents the use by an amateur station of any means of radio communication at its disposal to provide essential communication needs in connection with the immediate safety of human life and immediate protection of property when normal communication systems are not available." Indeed, amateur radio operators provide essential communications links and facilitate relief actions in disaster situations. While land mobile radio services are the primary means of conducting emergency communications, amateur radio plays a unique and critical role when these primary facilities are damaged, overloaded, or destroyed. For example, during Hurricane Katrina, amateur radio operators volunteered to support many agencies, such as the Federal Emergency Management Agency, the National Weather Service, and the American Red Cross. Amateur radio stations provided urgently needed wireless communications in many locations where there was no other means of communicating and also provided other technical aid to the communities affected by Hurricane Katrina.

3. Since amateur radio is often an essential element of emergency preparedness and response, many state and local governments and public safety agencies incorporate amateur radio operators and the communication capabilities of the amateur service into their emergency planning. In this regard, some entities, such as hospitals, emergency operations centers, and police, fire, and emergency medical service stations, have emphasized the participation of their employees who are amateur station operators in emergency and disaster drills and tests. For example, a representative of the New Orleans Urban Area Security Initiative recently emphasized the importance of conducting emergency drills and the need for amateur participation.

4. The Commission's rules expressly permit operation of amateur stations for public service communications during emergencies, and on a voluntary basis during drills and exercises in preparation for such emergencies. Given, however, that the Amateur Radio Service is primarily designated for "amateurs, that is, duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest," the rules expressly prohibit amateur stations from transmitting communications "in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer." Accordingly, public safety entities seeking to have employees operate amateur stations during government-sponsored emergency preparedness and disaster drills presently must request a waiver.

III. DISCUSSION

5. We seek comment on whether to amend the rules to permit amateur radio operators to participate in government-sponsored emergency and disaster preparedness drills and tests, regardless of whether the operators are employees of the entities participating in the drill or test. The rules already recognize the importance of amateur radio in emergencies, and permit participation in such drills and tests by volunteers (i.e., non-employees of participating entities). As noted above, experience has shown that amateur operations can and have played an essential role in protecting the safety of life and property during emergency situations and disasters. And as evidenced by recent waiver requests, state and local government public safety agencies and other entities often conduct disaster and emergency preparedness drills to be best-prepared for such eventualities. The proposed rule would obviate the need for a waiver in such instances by allowing employees of public safety agencies and other entities to operate amateur stations for testing and drilling of emergency communications preparedness. We thus tentatively conclude that employee status should not preclude or prevent participation in government-sponsored emergency and disaster tests and drills. Further, we tentatively conclude that extending authority to operate amateur stations during such drills will enhance emergency preparedness and thus serve the public interest.

6. In reaching these tentative conclusions, we do not disturb the core principle of the amateur radio service as a voluntary, non-commercial communication service carried out by duly authorized persons interested in radio technique with a personal aim and without pecuniary interest. Rather, we believe that the public interest will be served by a narrow exception to the prohibition on transmitting amateur communications in which the station control operator has a pecuniary interest or employment relationship, and that such an exception is consistent with the intent of the amateur radio service rules. Accordingly, we propose that amateur operations in connection with emergency drills be limited to the duration and scope of the drill, test or exercise being conducted, and operational testing immediately prior to the drill, test or exercise.
7. Furthermore, we propose that the emergency tests and drills must be sponsored by Federal, state, or local governments or agencies, in order to limit the narrow exception to ensure that drills further public safety. We note, however, that there may be circumstances where conducting emergency drills for disaster planning purposes, even if not government-sponsored, would serve the public interest. Accordingly, we seek comment on whether we should permit employee operation of amateur stations during non-government-sponsored emergency drills, if the purpose of the drill is to assess communications capabilities, including amateur radio, in order to improve emergency preparedness and response.

8. A large number of agencies and organizations at the state and local levels coordinate with their local volunteer amateur radio operators to conduct drills and exercises in concert with other modes of communication. This joint activity is essential to allow for a practiced response on the part of the first responder community. Because some of those drills and exercises include transmission of amateur communications by employees of participating entities, we believe the proposed rule changes would be in the public interest, consistent with ongoing national emergency preparedness and response priorities. We therefore seek comment on the tentative conclusions contained herein.

III. PROCEDURAL MATTERS

9. Initial Regulatory Flexibility Certification. The Regulatory Flexibility Act (RFA) requires an initial regulatory flexibility analysis to be prepared for notice and comment rulemaking proceedings, unless the agency certifies that "the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities." The RFA generally defines the term "small entity" as having the same meaning as the terms "small business," "small organization," and "small governmental jurisdiction." In addition, the term "small business" has the same meaning as the term "small business concern" under the Small Business Act. A "small business concern" is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

10. Because "small entities," as defined in the RFA, are not persons eligible for licensing in the amateur service, this proposed rule does not apply to "small entities." Rather, it applies exclusively to individuals who are the control operators of amateur radio stations. Therefore, we certify that the proposals in this Notice of Proposed Rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Notice of Proposed Rulemaking, including a copy of this Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA. This initial certification will also be published in the Federal Register.

11. The rulemaking shall be treated as a "permit-but-disclose" proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented generally is required. Other requirements pertaining to oral and written presentations are set forth in Section 1.1206(b) of the Commission's rules.

12. Comment and Reply Comment Filing Instructions. Pursuant to sections 1.415 and 1.419 of the Commission's Rules, 47 C.F.R. §§ 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the front page of this document. Comments may be filed using: (1) the Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 Fed. Reg. 24121 (1998).

· Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the website for submitting comments.

· For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the following words in the body of the message "get form." A sample form and directions will be sent in response.

· Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Federal Communications Commission.
· The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE, Suite 110, Washington DC 20002. The filing hours at this location are 8:00 am to 7:00 pm. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
· Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
· U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW, Washington DC 20554.
People with Disabilities: To request materials in alternative formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).

13. Interested parties may view documents filed in this proceeding on the Commission's Electronic Comment Filing System (ECFS) using the following steps: (1) Access ECFS at http://www.fcc.gov/cgb/ecfs. (2) In the introductory screen, click on "Search for Filed Comments." (3) In the "Proceeding" box, enter the numerals in the docket number. (4) Click on the box marked "Retrieve Document List." A link to each document is provided in the document list. Filings and comments are also available for public inspection and copying during regular business hours at the FCC Reference Information Center, 445 12th Street, SW, Room CY-A257, Washington, DC 20554. Filings and comments also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, or via e-mail to fcc@bcpiweb.com. This Notice of Proposed Rulemaking also may be downloaded from the Commission's web site at http://www.fcc.gov/.

14. Congressional Review Act. The Commission will send a copy of this Notice of Proposed Rulemaking to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. § 801(a)(1)(4).

15. Paperwork Reduction Act Analysis. This Notice of Proposed Rulemaking does not contain proposed information collection(s), subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, the Notice of Proposed Rulemaking does not contain any proposed new or modified "information collection burden for small business concerns with fewer than 25 employees," pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. § 3506(c)(4).

16. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules. None.

17. For further information, contact Jeffrey Cohen, Senior Legal Counsel, Public Safety and Homeland Security Bureau, (202) 418-0799, or via e-mail at Jeff.Cohen@fcc.gov.

IV. ORDERING CLAUSES

18. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 303(r), and 403 of the Communications Act of 1934, 47 U.S.C. §§ 154(i), 303(r), and 403, that this Notice of Proposed Rulemaking is HEREBY ADOPTED.

19. IT IS FURTHER ORDERED that the Commission's Consumer and Governmental Affairs Bureau, Reference Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration.

Federal Communications Commission
Marlene H. Dortch
Secretary

APPENDIX

Proposed Rules


Part 97 of Chapter 1 of Title 47 of the Code of Federal Regulations is amended as follows:

The authority citation for part 97 continues to read as follows:

AUTHORITY: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609, unless otherwise noted.

1. Section 97.113 is amended by revising paragraph (a)(3), adding new paragraphs (a)(3)(i) and (a)(3)(ii), redesignating paragraphs (c) and (d) as new paragraphs (a)(3)(iii) and (a)(3)(iv) respectively, and redesignating paragraphs (e) and (f) as (c) and (d) respectively, to read as follows:

§ 97.113 Prohibited transmissions.

(a) ***

(3) Communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer, with the following exceptions:

(i) A control station operator may participate on behalf of an employer in a government-sponsored emergency preparedness or disaster readiness test or drill, limited to the duration and scope of such test or drill, and operational testing immediately prior to such test or drill.

(ii) An amateur operator may notify other amateur operators of the availability for sale or trade of apparatus normally used in an amateur station, provided that such activity is not conducted on a regular basis.

 

I have always had two concerns about this type of action:

1. People who become hams with no intention of fulfilling the purpose of AR in adding to the Radio Art. They become hams to serve their employers.

2. Agencies who need AR because their hi-tech systems may fail and they seek no solution other than AR as a cost savings measure. If these systems are vulnerable, they should be backed up with appropriate commercial gear.

There is no rule change necessary to allow agencies to purchase commercial licensed equipment and pay employees to operate during emergencies. Operation on the Amateur Radio Service is in no way required in lieu of the proper equipment by and law or rule. It is only desirable as a cost saving method of providing a service to agencies.

I have no issue with normal amateurs volunteering and helping out in disasters. I do have a problem with those who would thwart the purpose of AR by using it as a cheap alternative to commercial radio service rules.

 

Wow!

Does it really say 'permitting a ham on-the-air e-bay of ham gear??'

Where did THAT come from???

--W1YW

 

My concerns with the NPRM:

1: What does government sponsored mean? Can a government entity hand the drill to a non government 3rd party, call them sponsored, and let them have it? Or must the government sponsor ALSO be the primary on-air administrator of the test.

2. Why have "operational testing" before the actual drill ? As written, the words "immediately prior" can mean anything, including continuous operation between drills that are months apart.

3. Since these would be drills, without an actual emergency, does this activity have any special claim on a frequency ? Non-emergency nets deserve consideration, but enjoy no special priority in the regulatory structure. Let's keep it that way.

 

Clarification

No clarification of the " RULES " is necessary.
We "Amateurs " know that the rules are just fine as written.

This push to change our service is not warranted.

The EMCOM takeover is astounding .

All the best,

JB

 

Well, if you submit comments on this, then you must also submit comments on the AHA takeover of amateur radio.

 

Minority: We amateurs

W0JBC makes it pretty clear that he believes that *all* amateur radio operators would *not* like to change the rules to allow participation in drills where a pecuniary interest would be served.
If you follow his logic, you are probably discounting quite a few of us who have been or are employed by government; have been or are employed by disaster service groups listed under VOAD; have been or are associated with hospitals, utilities, etc. involved in disaster abatement; and/or have been or are associated with prior military service -and- believe that the current rules ignore our abilities because some fear a 'pecuniary' or money interest would corrupt the 'hobby'. If all that means that this is to draw a line in the sand at 'no money' versus 'half-an-hour to an hour' of pay, then think about what money your taxes will increase to provide increased cryptography and other backup improvements to new systems in the works. I guess my only questions for some are: "If you are really an amateur radio operator, when did you last volunteer your services? Would you have done it irregardless of pay?". 73 de KB0MNM- I know that both "amateur" and "ham" are historically derogatory terms- yet *we* are saddled with them.

 

Leave the rules alone.

I work in emergency services.
#1 Ham bands are not public safety bands.
#2 Our service provides ham equipment for the volunteers that come to help.
#3 If the emergency were real, the "employed hams" would be busy- It will depend upon the volunteers to man the station.
#4 Volunteer hams should participate so they are familiar with the various agencies and how they are set up.

Our service is open and supportive of the volunteers that may one day be needed. Our service utilizes the 800 trunk system for primary, a separate 800 trunk for backup, another separate 800 conventional system, an UHF conventional system and a VHF Conventional system. Why? Because as a public emergency service, you are supposed to be prepared.

We welcome the volunteers and the help and advice that they can share with us. We respect the amateur radio operator and the service he/she provides, and understand that the amateur radio bands are their bands and appreciate their support and help when all else fails.

The rules need to stay the same to protect the amateur radio bands from those that are not preparing their service properly or would take over the band as their backup system.

Leave the rules as they are. No changes are needed.

 

Excellent post.

 

I'm not all that displeased with what the suggested words convey. They are much better than what ARRL suggested to the Commission.

At least we don't have a blanket waiver grant to a lobbyist wishing to use our bands as a band aid instead of robust Part 90 systems.

I may be wrong, but I think this amounts to a **NO** to the American Hospital Association's waiver request. It certainly cannot be a yes, with wording proposing an exception to use employees only immediately before and during government-sponsored disaster drills not anytime a hospital wants to. The order speaks to constraining the extent of operation using employees, so I suspect that is not what AHA wanted to hear. If, that is, AHA's intentions were to use amateur radio illegitimately as a means of everyday emergency communications.

As to the rest of the issue, we should file comments as the commission does ask for them with respect to opening the service up further and allowing any organization, not just government, to conduct drills. That, folks, would open Pandora's Box.

 

There is no need for this proceeding. Since Katrina public safety organizations have been building more robust and redundant systems, and amateur radio is being obsoleted as even a backup. We have the hangers-on, who still wish to be there when the stuff hits the fan, but the fact is, they simply are not needed.

There is virtually no difference between a VHF hospital radio and a VHF amateur radio. Same power supply, same microphone, same antenna. There is nothing a ham transceiver can do, with either a paid or unpaid employee, that the hospital's Part 90 rig cannot do. They have the same coverage, the same type of repeaters, the same range. The hospital radio can do a few things the ham radio cannot, such as receive EKG data. The hospital radio can also use coded phrases that hams cannot.

We pay money to have these systems in place. If we are admitting, with this attempt to use amateur radio instead, that our money is being wasted, or wrongly spent, we need to find out why. We need to look at the root of the problem. What is wrong with Part 90 radio that makes it unable to do the job it is intended to do? That is the key question. What makes it unreliable? Why is amateur radio deemed more reliable?

What is wrong with Part 90 radio systems that make amateur radio more reliable?

Find the answer to that, and we will be far more advanced in safety communications than we will be by switching them to amateur radio.

Someone says "amateur" and "ham" are derogatory terms. I have never heard that. Until recently, that is. Now I do hear it from public safety officials who are disgusted with these 'hams' trying to get in the way, be heros, and take over the communications (and often other aspects) at emergencies. Yes, we are getting a black eye, and the "Rush To EMCOM" has caused it. More and more public safety organizations refuse to work with hams, refuse to allow hams to be on the scene.

And they don't need them.

We need to learn that we ARE the amateurs. That is part of our name. It is why we do hobby radio. It is why we ragchew, chase DX, build things, experiment. Part 90 users do NONE of those things. They use the radio to conduct business. Yes, business. We do not. We ARE amateurs, and we should hope we remain such, or we will be shut down.

Part of the good thing about progress is these Part 90 systems have become incredibly efficient, extremely capable. That's why they exist. And they exist without any Part 97 participation at all. I can't think of one medic, one EMT, one cop, one doctor, one nurse, one firefighter, who would rather use ham radio than use his efficient Part 90 radio. Not one. Unless he is also one of the 'new breed' of hams who thinks he is God's gift to Public Safety. Then, yeah, he wants to wind up his Kencomsu and flip through all the channels with "Hey, I'm here, I can help."

Folks, this EMCOM urge is killing amateur radio. We aren't needed!! If the power grid goes down, the hospitals, dispatch centers, police units all have backup power. More than we do. But in a wide-spread disaster, as was Katrina, we could be of use. Which is exactly why DHS, FEMA and local and regional authorities are builidng at major cost better and bigger communications systems. Maybe, someday, there will be another Katrina. Many hams will have lived and died before that happens. In the meantime we have so many who get into this hobby solely to be volunteers in public safety.

Let's see if we can get this Part 90 Auxilliary moved out of the ham bands and over to the DHS frequencies. Get it out of ham radio and let everyone who wishes volunteer to his/her heart's content. And do some real good. Get it out of ham radio!

They are the pros. How I wish we could open our eyes and see the truth -- we aren't needed! Not in the city, not in the country. The Part 90 systems are there and they are working, and they are growing.

That is how it should be.

Ed

 

You said it all KY5U.
Thanks.

 

Lee; THis takes close reading! I like this more and more.

Who is "the government" in these government sponsored drills (police, fire, etc). It wasn't clear if a hospital could be a part of a government sponsored drill and have employees participate?

It does seem like they pulled the center of responsibility away from the hospital and any non government, but still asked for comments on non-goverment drills.

 

Quick Reply from a Petitioner

David, N5FDL here, one of the three petitioners who sought this rule change.

Here are a few quick comments (more will appear on n5fdl.com later Thursday).

1. This is the minimum necessary to solve a real problem and is quite limited in scope. You may not agree that it's a problem, but the ARRL, CQ, our Amateur Radio Policy Committee, the American Hospital Assn., and, now, the FCC all agree.

2. I don't particularly like the "government sponsored" requirement but we can work around that. My ARES group can organize drills that are "government sponsored" with no problem at all.

3. I remain concerned that a QSO between a firefighter/ham and myself (merely a ham) about an ARES meeting could be considered illegal in some circumstances.

4. The AHA waiver request can work with this rule change--just have a government agency sponsor the hospital drills.

People who are opposed to the rule change should consider how minimalist it really is. The FCC is opening the rules just a crack to allow many hams to resume what they had been doing previously.

Still at issue: The CQ Magazine petition that would clear up questions about astronaut/hams and people who get paid to organize ham activities, write magazine reviews, etc. They deserve some clarity in the rules.

Can, for example, an ARRL employee actually test equipment on-the-air for an article? Participate in Field Day or other League-sponsored activities? Current rules seem to say, "No."

Just quick comments.

73 de David, N5FDL

 

It took 4 years for the Spread Spectrum rule change.

http://www.arrl.org/news/stories/2010/03/18/11396/?nc=1

Odd how quickly this is being dealt with!