In March 2010, the FCC released a Notice of Proposed Rule Making (NPRM) (WT Docket No 10-72) that proposed to amend the Part 97 rules -- specifically 97.113(a)(3) -- governing the Amateur Radio Service. The new rules would provide that, under certain limited conditions, Amateur Radio operators may transmit communications on behalf of their employers during government-sponsored emergency and disaster preparedness drills. While current rules provide for Amateur Radio use during emergencies, the rules prohibit communications where the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer, except for government-sponsored drills for which a waiver has been granted. The NPRM asked for comments from interested parties. As such, on May 24, the ARRL filed its initial comments and on June 7, filed its reply comments. The ARRL’s filings reflect the position by the Board of Directors at its January 2010 meeting.

Comments

While the ARRL said in its comments that it supports the FCC’s proposal to “facilitate Amateur Radio operations during government-sponsored emergency preparedness and disaster readiness drills and tests,” it advocates that the drills and exercises in which Amateur Radio licensee-employees may transmit communications on behalf of their employers “need not and should not be limited to Government-sponsored emergency communications drills and exercises. Instead, all bona fide emergency communications drills and exercises involving Amateur Radio should be subject to the same regulatory requirements.”

The ARRL urged that the Commission be “especially careful in crafting what should be an exceptionally narrow and limited exception to the general rule prohibiting communications on behalf of one’s employer.” The League feels that the FCC “should carefully delineate enforceable limits on the types of amateur communications that can be provided by licensee-employees on behalf of their employers” and pointed out that Section 97.113 of the Commission’s rules already contains a great deal of flexibility in terms of the types of communications that are permitted.

“The revised rule should be sufficiently specific to preclude any possible misunderstanding by Amateur Radio licensees (or on the part of their employers) about what communications are permitted and what are not,” the League maintains. “It is critical that employees be well-aware that they cannot use Amateur Radio stations to transmit business information at any time for their employers. It must also be apparent to employers from the rule itself that the employer cannot utilize its employees who are Amateur Radio operators for communications not directly related to disaster relief and emergency preparedness drills and exercises (such as business restoration communications) on behalf of that employer.”

In order to facilitate these suggestions, the ARRL proposes a slight revision to the proposed rule change set forth in the NPRM: The ARRL’s proposed wording includes some very specific language for the revised Section 97.113(a) (3) that will:

• Accommodate the specific needs of Amateur Radio licensees who are employees of entities who actively participate in organized, bona fide emergency communications and disaster readiness drills and tests.
• Permit effective and seamless emergency and disaster relief communications preparedness drills and exercises incorporating Amateur Radio.
• Protect the Amateur Service to some extent against potential commercial exploitation by business entities in lieu of other, more appropriate radio services.
• Protect Amateur Radio licensees who are employees against pressure from their employers to conduct inappropriate communications utilizing their Amateur Radio licenses.

Prior to 1993 -- in order to protect the essential, non-commercial character of the Amateur Service -- the Commission’s rules prohibited the use of Amateur Radio communications in which anyone had a pecuniary interest. Since this led to confusion among licensees about what was permitted and what was not -- unreasonably restricting Amateur Radio licensees in their good-faith efforts to provide public service communications -- the ARRL petitioned the Commission in 1992 to relax the rules governing “business communications.” In 1993, in Docket 92-136, in response to ARRL’s request, the Commission relaxed the restrictions substantially, adopting the current language of Section 97.113. The reason for the change was “to give amateur operators greater flexibility to provide communications for public service projects as well as to enhance the value of the amateur service in satisfying personal communication needs.”

“The change greatly facilitated volunteer Amateur Radio communications; however, there was no change at that time (or since) to the portion of the rule that prohibited communications in which the operator has a pecuniary interest, including communications on behalf of an employer,” the ARRL pointed out. “The italicized clause enunciated a specific instance in which a licensee is always deemed to have a pecuniary interest. In general, therefore, communications on behalf of an employer are, and should be prohibited per se. With very limited and very specific exceptions, such communications are now, and always have been expressly prohibited by Section 97.113 of the Commission’s rules.”

The League maintains that the rules should continue “in general to prohibit communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer (a typical example of which is the use of Amateur Radio to conduct business continuity or business restoration communications). However, the rules clearly permit precisely the same communications, if performed by a non-employee, volunteer Amateur Radio licensee, provided that such communications are not conducted on a regular basis.” This rule seeks to ensure that the Amateur Service is not misused as an inexpensive alternative to Part 90 or Part 95 land mobile communications or other radio services “and to ensure that employees who are Amateur Radio licensees are not subjected to undue pressure from employers to provide types of communications for which the Service was not intended. Those are important goals and the rule is reasonably related to achieving them. The rule should be retained in a form that is enforceable going forward.”

The FCC’s recently created waiver process -- whereby governmental organizations may request of the Wireless Bureau and be granted (on a case-by-case basis) a waiver to have amateurs conduct communications on behalf of an employer in connection with a government-sponsored drill or exercise -- is an acknowledgement that emergency communications preparedness using Amateur Radio in some circumstances necessitates relief from the strict application of Section 97.113(a)(3).

The ARRL notes that it appreciates the Commission’s responsiveness and attention to the needs and interests of the Amateur Service in creating this process; the waiver process has been well-received and professionally administered since its inception: “The Commission’s staff has been accommodating and prompt in the administration of the waiver program; however, that process is administratively cumbersome for those seeking such waivers and for the Commission’s staff as well. The process is not sufficiently flexible to accommodate the needs of some entities such as hospitals, state and local governments, and public safety agencies to adequately participate in periodic, bona fide Amateur Radio emergency communications drills and exercises. It is cumbersome because it requires a per-event waiver filing, and because the Commission’s staff has to process and grant these one at a time and analyze the need for waivers on a case-by-case basis. Sometimes the fact-based applications require additional inquiry by the Wireless Bureau staff and clarification by the applicant, which is labor-intensive and time-consuming. Since the Commission is willing to readily grant these waivers, a carefully crafted rule change is called for instead, thus to permit by rule what is now being routinely granted by individual waiver.”

The FCC’s NPRM requested comment as to whether it should permit employee operation of amateur stations during nongovernment-sponsored emergency communications drills and exercises as well. “The ARRL is of the view that entities that regularly participate through their employees, or which would be expected to have their employees participate, in bona fide emergency communications and disaster preparedness drills and exercises should, subject to carefully circumscribed and enforceable limits, be permitted to do so. Eligible emergency preparedness drills should not be limited to government-sponsored drills and exercises.”

It is the League’s position that Amateur Radio licensee-employees of organizations active in emergency communications and disaster relief planning “should be able to participate in all bona fide emergency communications drills and exercises, whether or not those drills or exercises are sponsored by a government entity. ARRL’s Amateur Radio Emergency Service® (ARES®) program, for example, sponsors at the state and local level periodic, well-organized emergency communications drills and exercises.”

The ARRL asserts that there is no reason to differentiate between ARES® drills and exercises and those sponsored by a RACES entity acting under the auspices of a state or local office of emergency services: “Both organizations provide top-quality emergency and disaster relief communications, and there is no reason to regulate the two differently in this context. The American National Red Cross, with which ARRL has a Memorandum of Understanding, also sponsors emergency drills and exercises which regularly and extensively utilize Amateur Radio communications. Those entities which would utilize their employees in order to participate in a Red Cross emergency exercise should be permitted to do so to the same extent that they could participate in a government-sponsored drill or exercise.”

Calling the Commission’s waiver process a reasonable “escape valve” for the unusual circumstances that arise in which organizations have a need for employees to fill the role that a volunteer Amateur Radio operator might not appropriately fill, the ARRL maintains that if the rule is amended very specifically “and if the Amateur Radio transmissions to be made by an employee for the benefit of the employer are strictly limited to those ‘necessary to participation in emergency preparedness and disaster drills that include Amateur operations for the purpose of emergency response, disaster relief or the testing and maintenance of equipment used for that purpose,’ the purposes of Section 97.113 would not be frustrated, and the public interest would be furthered by the rule change.”

The ARRL emphasizes that such a “specific, limited exception” would not compromise the non-pecuniary character of the Amateur Service, or permit an employer to pressure an employee to exploit the Amateur Service for the commercial benefit of that employer: “The key is to prohibit the conduct of operational, business or business restoration communications by Amateur Radio licensees who are employees of the organization involved in emergency preparedness, but to permit and facilitate the involvement of the organization as a key participant in bona fide Amateur Radio emergency and disaster relief communications drills and exercises.”

As such, the ARRL proposes that the Commission should modify the rule, but only subject to the following specific provisions:

• The emergency preparedness and disaster readiness drills and tests during which an employee who is an Amateur Radio licensee may provide communications on behalf of the licensee’s employer should not be limited to government-sponsored drills and tests.
• The transmissions made by Amateur Radio licensees pursuant to the exception should be at all times limited to those necessary to participation in emergency preparedness and disaster drills that include Amateur operations for the purpose of emergency response, disaster relief or the testing and maintenance of equipment used for that purpose, and for no other purpose.

The ultimate beneficiary of Amateur Radio communications is the public. But the ARRL stresses that the Amateur Service should not be exploited “as an inexpensive, flexible alternative to the Land Mobile Radio Service, the General Mobile Radio Service, or Commercial Mobile Radio Service facilities.” The ARRL supports modification of Section 97.113 of the Commission’s rules as set forth in the revised Appendix, subject to the two very specific provisions set forth above, and only with those provisions.

Reply Comments

In its reply comments, the ARRL said that there has to be “an appropriate balance achieved between the need for continued protection of the essential, non-commercial character of the Amateur Service on the one hand, and the encouragement and facilitation of bona fide emergency preparedness and disaster relief drills and exercises on the other.”

The ARRL pointed out that the comments received by the FCC “overwhelmingly support the Commission’s effort to facilitate Amateur Radio operations during emergency preparedness and disaster readiness drills and tests.” Noting that more than 200 comments have been filed with the FCC, the League said that the Commission has “a well-established ‘road map’ supporting a very limited exception” to Section 97.113(a)(3).

Even so, a few comments firmly opposed the FCC’s proposal, even under limited circumstances, to allow for the participation of Amateur Radio Service licensees in emergency communications drills and exercises during which, and pursuant to which, they may transmit communications on behalf of their employers. A larger number of comments urged caution in implementing a change to the rule, lest the noncommercial character of the Amateur Service be compromised.

“The ARRL is sympathetic to the concerns of these commenters, who believe that Amateur Service communications should remain completely separate and apart from any pecuniary involvement of the licensee,” the reply comments state. “Some comments appropriately note that international treaty provisions defining the Amateur Service specifically require that Amateur Radio communications must be ‘without pecuniary interest.’ Others note that any need of an employer in participating in emergency communications drills and exercises (or in any other use of Amateur Radio) can be accommodated with non-employee volunteers instead of employees, and as such it is not necessary to carve out exceptions to the rules prohibiting Amateur communications in which the licensee has a pecuniary interest and compromise the non-commercial character of the Amateur Service.” Observing that “there is a case to be made that it is not necessary to modify the rules at all in this proceeding,” the ARRL’s comments say that the League’s Board carefully debated the issue and “came to a slightly different conclusion -- but only slightly different.”

The ARRL stated that it is more concerned with several comments that propose to “essentially eviscerate the prohibition of communications in which the licensee has a pecuniary interest.” Saying that these comments that suggest permitting employees to conduct amateur communications on behalf of their employers in circumstances where Part 90, Part 74 or Part 95 communications facilities, or Commercial Mobile Radio Service facilities are clearly appropriate instead, the ARRL believes that the “clear danger” in modifying that present rule could make the modification so broad “as to (1) permit the commercial exploitation of the Amateur Service for the private benefit of an entity; (2) be insufficiently specific, thus making the rule unenforceable and subject to misinterpretation, or (3) be broad enough to permit an employee to be pressured to participate in communications for the principal benefit of the employer.”

Because of this, ARRL urges the Commission to reject “exploitive counterproposals that suffer these flaws,” such as that of the Boeing Company. Boeing seeks the authority to conduct essentially routine, continuous, internal communications by means of Amateur Radio licensee-employees. Boeing seeks to allow employees of Boeing to transmit “operational and capabilities assessment transmissions” via Amateur Radio 30 days ahead of scheduled emergency communications drills and exercises, as well as seeking to permit continuous testing of automatically controlled digital communications systems by Boeing employee-Amateur Radio licensees.

“This, to the extent that the digital communications being transmitted by Amateur Radio during this continuous testing relate to the operations of Boeing (including the security of Boeing employees) is well outside the scope of any emergency communications drill or exercise,” the ARRL maintains. “While ARRL appreciates Boeing’s recognition of the value and capabilities of the Amateur Service in actual emergency contexts, the vague nexus asserted by Boeing between the employee/Amateur Radio communications that Boeing wants authorized and the protection of Boeing employees is a transparent misuse of Amateur Radio for Boeing’s own commercial benefit. Boeing’s proposal is not only beyond the bounds of reasonableness, it is well beyond the scope of this proceeding.”

Notably, the functions that Boeing wishes to make of Amateur Radio communications can be accommodated without any rule change by Amateur Radio volunteers (but not by Boeing employees), “if Boeing can find volunteers willing to exploit their avocation for such commercial purposes,” the ARRL states in its reply comments. “Also, it is unclear whether Boeing understands the current Section 97.113(a) rule; there is nothing wrong with a Boeing employee’s licensed use of an amateur station located at Boeing’s facilities, as long as the communications transmitted by that licensee/employee are not ‘on behalf of’ Boeing. Therefore, testing of a digital Amateur Radio station to insure its functionality in the event of an emergency is fine, as long as the test transmissions do not relate to Boeing’s operations or its own business affairs.”

The ARRL asserts that the comments of Arlington County, Virginia’s Office of Emergency Management “exhibit a misunderstanding of the present Section 97.113 rule requirements, and seek to undercut the purposes of the rule as well.” Arlington County suggests that Section 97.113(a)(3) could be amended to provide, for example, that an employee should be permitted to utilize no more than 5 percent of his or her on-duty time to providing services as a “volunteer amateur operator in support of emergency exercises, drills and tests.”

“This misses the point of the rule entirely,” the ARRL explains. “It is not the ‘on-duty time’ of an employee that is at issue. The question in this proceeding is whether or not, and under what circumstances, an employee who is an Amateur Radio licensee can transmit communications on behalf of his or her employer. There is no doubt that an Amateur Radio operator can utilize an Amateur Radio station to conduct normal Amateur Radio communications (including participating in emergency communications drills and exercises), whether or not that person is or is not being paid by an employer at the time, as long as those communications are not being done ‘on behalf of’ the employer.”

The ARRL contends that the Section 97.113(a)(3) rule is triggered, however, “when those communications are being done by the employee on behalf of his or her employer. If the Amateur Radio operator is an employee of a hospital, for example, and if the employee’s participation in an emergency communications drill or exercise is on behalf of the hospital, and if the transmissions relate to the hospital’s facilities or operations, the present Section 97.113(a)(3) is violated, absent a Commission waiver.”

It is the ARRL’s position that Arlington County’s suggestion for the scope of the relaxation of Section 97.113(a) (3) is “untenable.” Arlington County seeks exclusions from Section 97.113(a)(3) for “employees of...non-profit (non-government organizations), and other Critical Infrastructure entities such as telecommunications, cable, satellite carriers, TV or other such commercial entities which during national emergencies may provide needed life support and goods that directly benefit the public interest through the activation of [Arlington County’s Auxiliary Communications Service] at entities such as Wal-Mart, Lowes, Home Depot, CONAG, Union Pacific, FedEx, etc.” Arlington County explained that these commercial entities provide “sustainment infrastructure” such as food, water, construction supplies and the like, and Amateur Radio can facilitate “logistical responses to impacted areas.” Amateur Radio’s role in emergency communications is to protect against immediate threats to life and property, not for long-term logistical responses to impacted areas after communications infrastructure is restored.