ARRL Files Comments in Response to Hospital Association Seeking Blanket Waiver Request for Amateur Radio Drills
In February 2010, the American Hospital Association (AHA) filed a request with the FCC for a blanket waiver of Section 97.113(a)(3) of the Commission's Rules "to permit hospitals seeking accreditation to use Amateur Radio operators who are hospital employees to transmit communications on behalf of the hospital as part of emergency preparedness drills." On March 3, the FCC issued a Public Notice -- WP Docket 10-54 -- seeking comments if the Commission "should grant AHA's request for a blanket waiver of Section 97.113(a)(3) to permit amateur operators who are hospital employees to participate in emergency drills that are conducted by hospitals for accreditation purposes and that are not government-sponsored." Section 97.113(a)(3) specifically prohibits amateur stations from transmitting communications "in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer." On April 2, the ARRL filed comments regarding the blanket waiver request.
While not opposing the grant of a waiver, the ARRL urged the Commission "to carefully delineate limits on the types of communications that can be provided by employees of hospitals for accreditation purposes or otherwise pursuant thereto." The ARRL pointed out that AHA's waiver request was not "sufficiently specific to preclude any possible misunderstanding by Amateur Radio licensees (and hospital administrators) about what is permitted and what is not. The Commission's notice alleviates some, but not all of these concerns."
To address this, ARRL proposed some very specific language for this waiver in its comments that will:
- Accommodate the specific needs of AHA and its member hospitals.
- 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.
- Protect Amateur Radio licensees who are employees of hospitals against pressure from employers to conduct inappropriate communications by means of Amateur Radio stations.
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 -- and unreasonably restricted Amateur Radio licensees and 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, Docket 92-136 -- in response to ARRL's request -- saw the Commission relax 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 maintains. "That 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 should be prohibited per se. With very limited and very specific exceptions, such communications are now, and always have been expressly prohibited."
Section 97.113 (a)(3) of the Commission's Rules presently prohibits an employee who is an Amateur Radio licensee from providing Amateur Radio communications on behalf of his or her employer. The rule now reads in relevant part as follows:
§97.113 Prohibited transmissions
(a) No amateur station shall transmit:
(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. Amateur operators may, however…
(5) Communications, on a regular basis, which could reasonably be furnished alternatively through other radio services.
It is the ARRL's belief that the prohibition of "communications on behalf of [a licensee's] employer" has sound policy bases: "It protects the Amateur Service to some extent against commercial exploitation, and it protects employees from being subject to unreasonable pressure from an employer to use their Amateur Service licenses for purposes for which the Service was not intended."
The ARRL recognizes that there are amateurs who are employees of entities (such as hospitals) who might reasonably wish to engage in emergency communications planning, emergency communications exercises and drills, and training, but cannot themselves do so on behalf of their employer. Instead, they must use non-employee volunteers for the same purpose.
"The existing rule clearly prohibits transmissions by employees on behalf of their employers (for example, to conduct business continuity communications); however, the rules clearly permit precisely the same communications, if performed by a nonemployee, volunteer Amateur Radio licensee, as long as such communications are not conducted on a regular basis," the ARRL said in its comments. "The 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."
In October 2006, the FCC released a Report and Order (FCC 06-149, 21 FCC Rcd.11643) offering a clarification for employees of disaster relief agencies or emergency response organizations who are Amateur licensees, stating that "Section 97.113 does not prohibit amateur radio operators who are emergency personnel engaged in disaster relief from using the amateur service bands while on paid duty status. 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."
In its comments, the ARRL asserts that this, however, was not an exception to the prohibition of "communications on behalf of an employer" found at Section 97.113(a)(3): "Paid emergency personnel who are licensed amateurs, and who need to employ Amateur Radio in actual disaster relief operations can rely on the Commission's statements that they may do so. This clarification applies only to 'emergency personnel engaged in disaster relief.' It does not apply to training exercises or drills. It does not apply to employees of entities that may encounter business disruptions but which are not in the business (either for-profit or non-profit) of providing disaster relief. And it does not permit employees to provide communications on behalf of their employers."
The Waiver Process and the Section 97.113 NPRM
In October 2009, the Commission created a waiver process where government entities wishing to hold a drill using Amateur Radio may request a one-time waiver from the Wireless Bureau. These waivers -- granted on a case-by-case basis -- allow the amateurs to conduct communications on behalf of an employer in connection with a "government sponsored drill or exercise."
The ARRL acknowledges that emergency communications preparedness using Amateur Radio in some circumstances necessitates relief from the strict application of Section 97.113(a)(3). "The Commission's responsiveness and attention to the needs and interests of the Amateur Service in creating this process is appreciated in the Amateur Radio community and it has been well-received and professionally administered since its inception. The Commission's staff has been encouraging and very prompt in the administration of the waiver program."
But the ARRL points out that the waiver application process is "administratively cumbersome" for both the requesting government agency and the Commission's staff: "The process is not sufficiently flexible to accommodate the needs of some entities, such as hospitals, 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." It is the ARRL's position that 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."
On March 24, 2010, the Commission released its NPRM, proposing to modify Section 97.113(a) of the Commission's Rules to provide that, under certain limited conditions, Amateur Radio operators may transmit messages during emergency and disaster preparedness drills, regardless of whether the operators are employees participating in the drill. The proposed exception in the NPRM would allow employee licensees to provide communications for employers during government sponsored drills or exercises. But the Commission asked for comments on whether it should permit employee operation of Amateur stations during non-government-sponsored drills and exercises, as well. Saying that the ARRL will submit comments in that proceeding in due course, the League notes that the AHA seeks to permit its member hospitals to utilize Amateur Radio operations as part of emergency preparedness drills, without limiting such to government-sponsored drills and exercises: "ARRL believes it necessary to include in the waiver grant the ability to permit Amateur Radio licensee employees of hospitals to participate in bona fide emergency communications drills and exercises, whether or not sponsored by a government entity. ARRL's Amateur Radio Emergency Service (ARES) program, for example, sponsors at the State and local level periodic emergency communications drills and exercises. There is no reason to differentiate between ARES drills and exercises and those sponsored by, for example, a Radio Amateur Civil Emergency Service (RACES) entity acting under the auspices of a State or local office of emergency services."
The Types of Communications Permitted under the Waiver Should Be Carefully Delineated and the Waiver Granted (Subject to Conditions)
The ARRL acknowledges that there are very important policy justifications for a per se prohibition of communications made by amateur licensees on behalf of the licensee's employer. The Commission's waiver authority -- per Section 1.925 of the Commission's rules -- allows the Commission to grant a waiver if it is shown that (a) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant case, and grant of the requested waiver would be in the public interest; or (b) if there are unique or unusual factual circumstances in a specific case where application of the rule would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative. It is the ARRL's position that neither of these alternative justifications is entirely or obviously applicable to the AHA request.
The ARRL believes, however, that it could be concluded that "if the conditions attached to the blanket waiver are very specific and limit the radio transmissions to be made by hospital employees for the benefit of the hospital 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 furthered by grant of the waiver."
The ARRL maintains that such a specific limit on the waiver authority in this case "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 hospital operational, business or business restoration communications by Amateur Radio licensees who are employees of the hospital, but to permit and facilitate the involvement of the hospital as a key participant in bona fide Amateur Radio emergency and disaster relief communications drills and exercises."
Section 97.113 as it presently reads, in general does what the Commission intended in 1993: "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 ARRL suggests in its comments that the blanket waiver sought by AHA should be granted, but only subject to the following specific conditions:
- The waiver is independent of, and is without prejudice to any action that might be taken in WP Docket 10-72, and will be in effect only until the time that final action is taken in that proceeding.
- That the transmissions made by Amateur Radio licensees pursuant to the blanket waiver 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 no other purpose.
The ARRL believes that the Amateur Radio Service is ready, willing and able to provide public service, emergency and disaster communications, and it is well understood that a necessary component of that ability and readiness is the experience that comes from preparedness exercises and drills. The ultimate beneficiary of Amateur Radio communications is the public, but "the Service should not, however, be exploited as an inexpensive, flexible alternative to the Land Mobile Radio Service, the General Mobile Radio Service or Commercial Mobile Radio Service facilities. ARRL considers the language set forth hereinabove a necessary and sufficient condition on the AHA waiver grant to address AHA's goals, and the needs and interests of Amateur Radio licensees, and with the two conditions set forth above, and only with those conditions, ARRL supports grant of the blanket waiver."