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FCC Denies Anchorage VEC’s Waiver Request

01/24/2012

On January 24, the FCC issued an Order that denied a waiver request from the Anchorage VEC, one of 14 Volunteer Examiner Coordinators in the US. In its July 2011 Waiver Request, the Anchorage VEC asked the Commission to permit individuals who have previously held an Amateur Radio license grant issued by the Commission -- but which has expired and is beyond the two year grace period for renewal -- to receive credit for elements previously passed, and thus a new license grant, without additional examination. This Waiver Request was in addition to a Petition for Rulemaking (RM-11629) filed in April 2011 that asked the FCC to give permanent credit to radio amateurs for examination elements they have successfully passed, effectively creating a license exam credit that would be valid throughout an amateurs’ lifetime, never expiring. The FCC noted that the denial of the waiver request was without prejudice to the Anchorage VEC’s pending Petition for Rulemaking, meaning that this denial will have no impact on the pending Petition, and the FCC will still consider it.

To demonstrate that he or she is qualified to be issued a new or upgraded Amateur Radio license, they must pass an examination or otherwise receive credit for the examination element(s) required to qualify for the relevant operator license. A person receives credit for an examination element if he or she presents a certificate of successful completion of an examination, showing that they passed the element within the previous 365 days, or an unexpired (or expired but within the two-year grace period for renewal) operator license that required passage of that examination element. With one narrow exception (holders of a Technician class license granted before March 21, 1987 automatically receive credit for Element 3 [General class]), element credit is not given for an amateur operator license that has expired and cannot be renewed.

In its waiver request, the Anchorage VEC asserted that grant of the waiver will permit individuals whose Amateur Radio license grants have expired to obtain a new license grant at an early date, thereby allowing them to again participate in normal Amateur Radio activities. It also stated that several potential beneficiaries of this action are of advanced years and are interested in prompt resolution of this matter. The FCC placed the waiver request on Public Notice and comments were evenly split between those supporting the request and those opposing it.

Section 1.925 of the Commission’s Rules provides that the FCC may 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) in light of unique or unusual circumstances, application of the rule(s) would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative. The FCC concluded that the Anchorage VEC did not meet either requirement.

In denying the Anchorage VEC’s waiver request, the FCC noted that “[a]llowing a licensee whose license is active, or can be renewed to receive element credit for examination elements previously passed, is consistent [with] the basis and purpose of the Amateur Service, which includes encouragement and improvement of the service through rules which provide for advancing skills in both the communication and technical phases of the art. Individuals who do not hold a current or renewable Amateur Radio operator license, however, regardless of whether they have held one in the past, must demonstrate their qualifications to be Amateur Radio operators before obtaining a new license. We conclude, therefore, that grant of the requested waiver to allow examination credit to be granted for any previously held Amateur Service operator license would not serve the underlying purpose of the rule. Additionally, we note that Amateur Radio testing opportunities are widely available. [Volunteer Examiners] can administer tests at any location and time convenient to them and the examinee. Consequently, Anchorage VEC has not shown that requiring retesting of examinees whose operator licenses expired more than two years ago, including those of advanced years, is inequitable or unduly burdensome, or that these examinees have no reasonable alternative.”

ARRL Objected to Waiver Request

In August 2011, the ARRL filed comments with the FCC, opposing the Anchorage VEC’s Waiver Request. In its comments, the ARRL maintained that if the FCC granted 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.”

At the time that the ARRL filed it comments, it explained that it was not taking a position with respect to the merits of RM-11629. The ARRL said that it opposed 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.”

In denying the Waiver Request, the FCC concluded that the Anchorage VEC “has not shown good cause for waiver of the Amateur Service rules to allow VEs to give examination credit to an examinee who holds an Amateur Radio operator license document that has been expired for more than two years. Therefore, we decline to waive Section 97.505(a) of the Commission’s Rules.”



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