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ARRL Files Comments in Response to Anchorage VEC’s Waiver Request

08/19/2011

In April 2011, the Anchorage VEC -- one of 14 Volunteer Examiner Coordinators -- filed a Petition for Rule Making (RM-11629) that asked the FCC to give permanent credit to radio amateurs for examination elements they have successfully passed. This would, in effect, create a license exam credit that would be valid throughout an amateurs’ lifetime, never expiring. On July 6, the Anchorage VEC submitted a Waiver Request with the FCC while RM-11629 is pending. This request asks that the FCC grant a blanket waiver of Section 97.505 of the Commission’s Rules to those radio amateurs whose licenses have expired -- and are beyond the two-year grace period for renewal -- to be afforded credit for examination elements previously passed. On August 11, the ARRL filed comments with the FCC, urging the Commission to dismiss or deny the Waiver Request.

At this time, the ARRL is not taking a position with respect to the merits of RM-11629; however, the ARRL opposes the Waiver Request “because the Anchorage VEC has failed to justify the need for the interim relief sought therein. That opposition, however, does not extend to the underlying petition, RM-11629,” and that “[r]eview of the issue now may be timely, but it should be done in the context of a normal notice-and-comment rulemaking, not by waiver.”

According to the ARRL, if the FCC grants Anchorage VEC’s Waiver Request, it “would quite obviously prejudge the outcome of RM-11629. If for any reason RM-11629 is denied or dismissed, those who re-obtained licenses pursuant to the temporary waiver would either have been given a privilege not afforded others similarly situated, or else they would have their reinstated/renewed licenses revoked at a later date. Should the Commission grant the temporary waiver, it is tantamount to grant of the underlying petition. Indeed, it appears that the Waiver Request is principally an effort by the Anchorage VEC to bolster (or amend) the underlying Petition for Rule Making.”

Background

In January 1994, the ARRL filed a Petition (RM-8418), asking that a former licensee be allowed to obtain a new amateur operator license without passing the requisite qualifying examinations again. The objective was to encourage former amateur operators to become involved again in the opportunities provided by the Amateur Service. In its Petition, the ARRL distinctly said that it did not seek to make this rule change retroactive : “The proposal is to extend currently held operator licenses from 10 years to a lifetime term. Whether to permit those who formerly had amateur licenses which expired prior to any effective date of any rule change implemented in this proceeding to reobtain those licenses is a separate issue which is not to be considered a part of this petition.”

But in a Notice of Proposed Rulemaking in 1995, the FCC offered its own proposal, namely that the holder of an expired license could apply to a VE team for examination credit for the examination elements previously passed. The ARRL filed comments against this, arguing that the Communications Act of 1934, as amended did not allow the delegation of what amounted to the renewal of a license. In its Report and Order issued April 1, 1997 the Commission did not address that argument, but cited general opposition in deciding not to adopt its own proposal.

ARRL Calls for “Careful Evaluation” of RM-11629

While the ARRL is not suggesting that the FCC re-evaluate its 1997 R&O at this time, “that action, and the strong opposition of it at the time, does strongly mitigate against implementing a temporary waiver to adopt the same relief now. This is especially true with respect to examination element credit, because the adoption of the waiver as proposed would effectively prejudge a favorable outcome for the Anchorage VEC petition.”

As such, the ARRL urged the FCC to “carefully evaluate RM-11629, and issue a Notice of Proposed Rule Making or Notice of Inquiry on the subject if it feels that the issue is meritorious. In the meantime, however, the rules should not be waived, temporarily or otherwise, to implement the examination element credit proposal. There has been no need demonstrated to justify the waiver, and such action would assume the outcome of what was earlier (and may well still be) a controversial issue. It is urged that the Commission give a full and fair evaluation of the underlying Petition, but that the Waiver Request be denied.”

Why a Waiver Request?

In its Waiver Request, the Anchorage VEC notes that:

  • Individuals will be able to obtain a new license grant at an early date, allowing them to again participate in Amateur Radio activities.
  • There will be no negative impact on Commission staff, the VEC system or the amateur community.
  • There will be an “immediate expansion” of the pool of trained and experienced operators available for use in time of national or regional emergency.
  • Several of the potential beneficiaries of the change are “of advanced years” and are interested in “prompt resolution of this action.”
  • There is “ample precedent” for the waiver due to previous Commission rule changes, allowing credit for passing a previous version of Element 3 credit, even if the license grant had expired, and for telegraphy credit under certain circumstances.

“Even if the justifications cited by the Anchorage VEC in support of the waiver were all accurate (which is not the case), they are not sufficient justification for grant of a temporary waiver of the Commission’s rules, relative to examination element credit,” the ARRL noted in its comments. “They might serve as partial justifications for the underlying Petition, but not for the temporary Waiver Request.”

Section 1.925 of the Commission’s rules spell out what needs to happen before the FCC may grant a waiver. The ARRL maintains that the Anchorage VEC “has attempted to demonstrate that the waiver would be in the public interest, but it has not even attempted to meet the other requirements for either of the two alternative justifications for a temporary waiver. The examination element credit limitations in Section 97.505(a) of the Rules may or may not require change through the rulemaking process that the Anchorage VEC has initiated in the normal course. That determination, however, has completely different criteria than those required to justify a temporary waiver.”`

In its comments, the ARRL said that there is no shortage of opportunities for examinations for former licensees to re-obtain their lapsed licenses: “Any physically handicapped individuals must be and are accommodated in terms of Amateur Radio licensing opportunities. The status quo does not prejudice anyone; and all individuals are subject to the same requirements. As to the ‘ample precedent’ cited by the Anchorage VEC for the waiver, it is submitted that the precedent offered is not precedent for a temporary waiver at all. The Element 3 [General class written exam] credit or Element 1 [Morse code telegraphy exam] credit award examples cited by the Anchorage VEC in its Waiver Request were in each case the result of concluded, notice-and-comment rulemaking proceedings. No temporary waivers were granted when the rules were changed to permit element credit in the cited examples.”

As for Anchorage VEC citing that there would be an “immediate expansion of the pool of experienced and trained operators available for use in time of national or regional emergency,” the ARRL disagrees: “ARRL fully acknowledges the proven, reliable communication skills of licensed radio amateurs in times of emergency and disaster. Those skilled licensees, however, are typically active in emergency communications drills and training exercises, and there is no evidence that those whose licenses have lapsed for long periods of time are similarly able to ‘immediately’ provide emergency communications services. While they might be able to provide, or resume providing such services after some period of resumption of Amateur Radio activities, the Anchorage VEC has not shown that a grant of the waiver will provide an ‘immediate expansion’ of a pool of skilled communicators.”

In its Waiver Request, the Anchorage VEC set forth procedures for VECs to use, should the temporary waivers be granted (Appendix B). The ARRL points out that Appendix B is “internally inconsistent” with regard to proof of element credit and required identification of each applicant. Appendix B also specifies that VEs and VECs would process applications for a new license without an examination and “is beyond the scope of [their] statutory authority.”

The ARRL asks that the FCC process RM-11629 “in the normal course, and either proceed with a rulemaking proceeding based on the Petition or dismiss it, as the record indicates. However, the Commission should not grant the requested temporary waiver” and the Waiver Request should instead be “dismissed or denied.”



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