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BE Informed No. 3.0

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Section 97.113 Smell Test

For

Amateurs and Professionals (Hams)

John B. Johnston W3BE

It is “No means Yes” government doublespeak that in Section 97.1(a) our regulator claims that – among five principles – it has designed the rules for our amateur service in places where it regulates 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. Yet, Section 97.113 Prohibited communications is predominantly comprised of authorizations (red text below) specifically to enable professional communicators to make use of our amateur service spectrum. It says:

   (a) No amateur station shall transmit:

   (1) Communications specifically prohibited elsewhere in this Part (97);

   (2) Communications for hire or for material compensation, direct or indirect, paid or promised, except as otherwise provided in these rules;

   (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 station licensee or control station operator may participate on behalf of an employer in an 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. Tests or drills that are not government-sponsored are limited to a total time of one hour per week; except that no more than twice in any calendar year, they may be conducted for a period not to exceed 72 hours.

      (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.

      (iii) A control operator may accept compensation as an incident of a teaching position during periods of time when an amateur station is used by that teacher as a part of classroom instruction at an educational institution.

      (iv) The control operator of a club station may accept compensation for the periods of time when the station is transmitting telegraphy practice or information bulletins, provided that the station transmits such telegraphy practice and bulletins for at least 40 hours per week; schedules operations on at least six amateur service MF and HF bands using reasonable measures to maximize coverage; where the schedule of normal operating times and frequencies is published at least 30 days in advance of the actual transmissions; and where the control operator does not accept any direct or indirect compensation for any other service as a control operator.

   (4) Music using a phone emission except as specifically provided elsewhere in this section; communications intended to facilitate a criminal act; messages encoded for the purpose of obscuring their meaning, except as otherwise provided herein; obscene or indecent words or language; or false or deceptive messages, signals or identification.

   (5) Communications, on a regular basis, which could reasonably be furnished alternatively through other radio services.

   (b) An amateur station shall not engage in any form of broadcasting, nor may an amateur station transmit one-way communications except as specifically provided in these rules; nor shall an amateur station engage in any activity related to program production or news gathering for broadcasting purposes, except that communications directly related to the immediate safety of human life or the protection of property may be provided by amateur stations to broadcasters for dissemination to the public where no other means of communication is reasonably available before or at the time of the event.

   (c) No station shall retransmit programs or signals emanating from any type of radio station other than an amateur station, except propagation and weather forecast information intended for use by the general public and originated from United States Government stations, and communications, including incidental music, originating on United States Government frequencies between a manned spacecraft and its associated Earth stations. Prior approval for manned spacecraft communications retransmissions must be obtained from the National Aeronautics and Space Administration. Such retransmissions must be for the exclusive use of amateur radio operators. Propagation, weather forecasts, and manned spacecraft communications retransmissions may not be conducted on a regular basis, but only occasionally, as an incident of normal amateur radio communications.

   (d) No amateur station, except an auxiliary, repeater, or space station, may automatically retransmit the radio signals of other amateur station.

   These prohibited communications rules are our protection against the exploitation of our amateur service in places where the FCC regulates. They should maintain a practical difference between our amateur service and other – often commercial - radio services, i.e., broadcasting, common carrier, maritime, land mobile, government, aviation, et al.

   Our amateur service has been opened to another group of duly authorized persons. In addition to our traditional unremunerated hobbyists who truly measure up to the Section 97.3(a)(4) definition of an amateur, we have amongst us remunerated professional communicators. Until August 4, 2010, this latter group had been largely excluded because of their certain pecuniary interests that are now excused by Section 97.113(a)(3). Here's the distinction. 

For Amateurs

   Section 97.3(a)(4) defines an “amateur” as a duly authorized person interested in radio technique solely with a personal aim and without pecuniary interest. This definition is also similarly codified in SEC. 3. [47 USC 153](2) of the Communications Act as well as international Radio Regulations (RR) No. 1.56 and the United States Code of Federal Regulations Title 47 Section 2.1(c). Our amateur service is intended for the purpose of self-training, intercommunication and technical investigations carried out by amateurs. Presumably they are expected to converse about topics of interest to duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest.

   For bona fide amateurs, Section 97.113 says, in effect, that no station licensee should cause or allow the station to be used for any communications unless No can be answered truthfully and completely for each and every one of the following smell-test questions:

1. Is this communication specifically prohibited in Part 97 of the FCC rules? NO!

2. Is this communication for hire? NO!

3. Is this communication for direct material compensation? NO!

4. Is this communication for indirect material compensation? NO!

5. Is this communication for paid material compensation? NO!

6. Is this communication for promised material compensation? NO!

7. Does the station licensee have a pecuniary interest in this communication? NO!

8. Does the control operator have a pecuniary interest in this communication? NO!

9. Is this communication on behalf of the station licensee’s employer? NO!

10. Is this communication on behalf of the control operator’s employer? NO!

11. Can this communication be reasonably furnished alternatively through another radio service? NO!

11.1 If it can, is this communication being transmitted on a regular basis? NO!

For Professionals

   A “professional,” on the other hand, is a person holding an amateur operator license grant but who otherwise falls short of the core domestic statute and ITU international definition of an amateur as being a duly authorized person interested in radio technique solely with a personal aim and without pecuniary interest. For professional communicators, Section 97.113(a)(13) provides exceptions not otherwise appropriate for amateurs.

Q&A

Q. When may I use my amateur radio station to sell an item?

A. If you are a bona fide Section 97.3(a)(4) amateur, your answer is in Section 97.113(a)(3)(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.

   If you are a professional communicator, your answer is in Section 97.113(a)(3)(i). It provides this authorization domestically: A station licensee or control station operator may participate on behalf of an employer in an 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. (More)

   It is not at all unusual for an employer to be engaged in commerce. When a professional communicator is participating on behalf of any such employer in an emergency preparedness or disaster readiness test or drill and operational testing immediately prior to such test or drill, therefore, in places where the FCC regulates our amateur service, it can be concluded that transmissions to support such commerce can be expected.

   Be advised, however, Section 97.117 says: Transmissions to a different country, where permitted, shall be limited to communications incidental to the purposes of the amateur service and to remarks of a personal character. This international communication limitation seems to be applicable to both amateurs and to professional communicators. It remains to be seen whether other countries will similarly authorize commercial communications on our amateur service radio spectrum.

Q. Would I retain my status as an amateur if I used my station to intercommunicate with professionals?

A. You should be OK as long as your intercommunication passes the Section 97.113 smell-test above.

Q. Several members are voicing their concern over our club activities and the no business rule. We provide radio communications for a civic association during its fund-raising events that makes an annual contribution to our repeater fund. How should we respond to those critics?

A. Bring them up to date. Inform them that the former no business rule no longer exists and the FCC does not regulate our clubs. Rather, participating club members should apply the above Section 97.113 Smell Test for amateurs to determine whether their individual station transmissions comply. Professional communicators are excused to the extent codified in Section 97.113(a)(3)(i), (ii), (iii), and (iv) (red text above).

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April 23, 2016

Supersedes all prior editions