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BE Informed No. 1.25

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Just A Little Bit

Commercial

John B. Johnston W3BE

Q. As an amateur, it is very upsetting for me to see commercial activity creeping into our amateur radio service bands. It began to go off course following the 1993 Report and Order in Docket 92-136. Recent events show how important it is for it to be rescinded. Discussion Paragraphs 6 and 7 in that R&O are now being misused to “interpret” the outcome in some highly commercial contexts. I want my ham radio back!

A. That Docket addressed amendments to Part 97 that relaxed restrictions on the scope of permissible communications in our amateur service. At that time, FCC-licensed amateur stations were prohibited outright from transmitting any communications the purpose of which was to facilitate the business or commercial affairs of any party, or as an alternative to other authorized radio services. In response to petitions claiming to seek flexibility for amateur stations while transmitting communications for public service projects and personal matters, our regulator was persuaded to crack the seal on the bottle just a little bit. All of this with the expectation of not altering in any way the nature and purpose of our amateur service.

   If there was an error in adopting that decision, that should have been promptly addressed in a Petition for Reconsideration. A quarter century later, however, it would probably be best to revisit the issue with a new Petition for Rule Making. It might, for instance, be built upon evidence showing how our regulator’s 1993 expectations have not been realized, how our amateur service community has radically changed, and how it is being damaged by Section 97.113.

   Rules codified in the U.S. Code of Federal Regulations are the rules. They mean what they say. “Interpreters” should be highly suspect. At best, their pontifications are often no more than their guess as to what someone might or might not get away with during a certain period in time. Sometimes, they are just their wishful thoughts. In truth, not even FCC staffers can override the rules adopted by their POTUS-appointed superiors, the FCC Commissioners.

Q. No. 53 of the ITU Radio Regulations (Geneva, 1990) - the essence of which is carried over to the Communications Act of 1934, as amended, and to various FCC rule sections - clearly defines our amateur service as a radiocommunication service for the purpose of self-training, intercommunications and technical investigation carried out by amateurs, that is, by duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest. So, why in blue blazes was the commercial matter even brought up?

A. In the 1993 Report and Order in Docket 92-136, our regulator concluded from three petitions for rulemaking that our amateur service community generally desired a relaxation to the then so-called “no-business rule” such as to accommodate contemporary communications demands and the operational capabilities of amateur station licensees. Accommodations for our VHF/UHF repeaters and autopatch capabilities at that time were greatly influencing our amateur service community collective mindset. Most folks of that era had little inkling of what was to come with smartphones and tablets. So, Docket 92-136 was opened for public comment. After a year-long study of those comments, the Report and Order announced the decision.

Q. Just what does the R&O Paragraphs 6 and 7 have to say?

A. Paragraph 6 discusses the incorporation into the rules the criterion that any amateur-to-amateur communications is permitted unless specifically prohibited, or unless transmitted for compensation, or unless done for the pecuniary benefit of the station control operator or his or her employer.

   It also discusses the one request that our regulator did not accommodate: for the FCC to provide a list of anecdotal examples of permitted and prohibited communications. Rather, it chose to rely upon our amateur service’s tradition of self-regulation and cooperation between licensees, the cornerstones of our amateur services to determine whether specific communications should be transmitted on amateur frequencies.

   Paragraph 7 discusses our regulator’s belief that allowing amateur operators to use amateur service frequencies, for example, to support educational  activities, to provide personal communications such as making appointments and ordering food, to collect data for the National Weather service, and to provide assistance voluntarily even where there are other authorized service available will expand the benefits derived from our amateur service by the general public as well as amateur service licensees.

Q. Just what is amateur-to-amateur communications?

A. It is duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest sharing – via radio transmission – information for the purpose of self-training, intercommunications and technical investigation. In Section 97.111 Authorized transmissions, FCC-license amateur stations receive permission to engage in those as well as numerous other one-way and two-way communications.

Q. The barn door was opened to commercialism with that infernal Report and Order. The resulting Section 97.113 Prohibited communications is patently unenforceable. Paragraph 6 of the R&O, for example, says our regulator declines to provide a list of anecdotal examples of permitted and prohibited communications. Yet, such examples are listed in the following Paragraph 7

A. Our regulator was obviously forecasting a much, much larger and more detailed list of anecdotal examples. It said: “For us to do so would necessitate that we intrude upon the day-to-day functioning of the amateur service to a far greater degree than we desire. Further, in view of the wide diversity in the types of communications in which amateur operators want to engage, there would have to be thousands of examples. Therefore, we decline to devote staff resources to the development and maintenance of such a list.”

   Another development was in concert with that decision. On March 28, 1984, an Amateur Auxiliary agreement was concluded to enable amateur volunteers to interact with FCC personnel to perform maintenance monitoring of the Amateur Radio Service frequencies and other compliance functions. The insight gained from their many years of diligently monitoring our ham bands should uniquely enable them to most accurately compile the desired list of anecdotal examples of appropriate/inappropriate amateur service communications.

Q. A related issue is with how our regulator interprets “on a regular basis.” Section 97.113 Prohibited Communications uses that wishy-washy term in various paragraphs.

A. So it does, along with the term reasonably and other wet-spaghetti yardsticks. Such flexibility is one way in which our regulator relies “upon our amateur service’s tradition of self-regulation and cooperation between licensees, the cornerstones of our amateur services to determine whether specific communications should be transmitted on amateur frequencies.”

   So we should be taking more seriously general standard Section 97.101(a): In all respects not specifically covered by FCC Rules each amateur station must be operated in accordance with good engineering and good amateur practice. It is up to those in our U.S. amateur service community to collectively judge for ourselves just how deep into the vast commercial communications marketplace abyss we can venture without doing too much damage to our own legitimacy.

Q. Maybe our amateur service community is conceding that the public would be better served with more commercial communications than merely for the purpose of self-training, intercommunications and technical investigation carried out by amateurs, that is, by duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest. Some hams, moreover, seem to be preoccupied with finding more beneficial uses of the precious radio spectrum allocated to our amateur service.

A. If that observation becomes generally accepted as being accurate, prudent spectrum management would call for reallocating some or all of our amateur service frequency bands for use by those underserved commercial interests so identified by our amateur service community as being more deserving.

Q. Are they gaining traction?

A. Definitely. In 2012, our regulator reported to Congress its conclusion that amateur radio emergency communications require not only stations in a position to originate the emergency message, but also (serve as) an alternative to the commercial communications infrastructure impacted by the emergency. This alternative infrastructure is the network of amateur radio operators and their stations that relay messages, build and maintain repeater stations and repeater networks, operate HF message networks to send messages greater distances than are practical with mobile or transportable transmitters, and develop new technologies to improve the reliability of these networks.

   So far, at least, Congress has been dragging its feet in updating the Communications Act accordingly. The United Nations International Telecommunications Union also seems to be out-to-lunch on the matter. Amateurs and other hams, meanwhile, are stunned with the massive prospect of having to serve as an alternative to the commercial communications infrastructure impacted by the emergency with only their meager spectrum allocations, imported radios, and covenant-imposed antenna restrictions. That is a very ambitious objective, indeed.

   In another move toward commercialization, Section 97.113 has been amended to authorize a Section 97.103 station licensee or Section 97.105 control operator to participate on behalf of an employer in an emergency preparedness or disaster readiness test or drill. Such participation would obviously entail some serious commercial communications.

   Nevertheless, the high art of government doublespeak is on display in Section 97.1(a). Therein, our regulator claims that – amongst five principles – it has designed our rules to recognize and enhance the value of the amateur service to the public as a voluntary noncommercial communications service, particularly with respect to providing emergency communications.

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December 15, 2016

Supersedes all prior editions