FCC Interpretation of Business Communication Hurts Public Safety

FCC Interpretation of "Business Communication" Hurts Public Safety
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< mailto:> 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 unchallenged.
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
com/97113> 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-sponsore d 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
radio communication 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--especial ly 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 < com/97113/> 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.