FCC's Bill Cross: "Behave Yourselves!"
Bill Cross, W3TN, a staff member in the FCC's Mobility Division, and Laura Smith, FCC Special Counsel for Amateur Enforcement, spoke at the FCC Forum on Saturday, May 16 at the 2009 Dayton Hamvention®. Cross opened by explaining just where Amateur Radio falls in the FCC's bureaucracy: "In the Mobility Division [part of the Wireless Telecommunications Bureau], we handle the day-to-day administration of the Amateur Service and some of the rulemaking activities that affect Amateur Radio. The Division also has staff members in our Gettysburg, Pennsylvania office. Our Gettysburg staff handles most of your applications and the licensing matters and deals with the Universal Licensing System, or ULS."
Cross offered some general comments on the Commission and its priorities, then went on to discuss topics that he said "keep coming up in questions we receive in articles that appear on Web sites and in columns in newsletters and the like. I'm not going to spend a lot of time talking about Commission decisions that have been issued, because most of these have been reported on the ARRL or other Web sites."
Cross went on to say that he does hear from Riley Hollingsworth, who retired as Special Counsel for the Spectrum Enforcement Division in July 2008; Smith replaced Hollingsworth earlier this year. Saying he received an e-mail from Hollingsworth that asked his opinion whether he should get an amplifier or 260 feet of hardline, Cross said that was an easy question to answer: "Get both! Two hundred and sixty feet of hardline. Okay. Thirty feet through the house, 30 feet out to the tower and 200 feet straight up. That sounded pretty reasonable. But then I found out that what he was thinking about was 230 feet across the back yard and 30 feet up. So, I've still got some work to do there."
As for the FCC Administration, Cross said that "the relationships between the Commissioners are very collegial." Cross pointed out that earlier this year, President Obama nominated two people to fill Commissioner vacancies: Julius Genachowski for Chairman and Mignon Clyburn to fill the seat held by Jonathan Adelstein. Adelstein has been nominated to head up the Rural Utilities Service, of the United States Department of Agriculture. "The last I read was that their confirmation hearings would be held after Memorial Day, and beyond that, we really don't know what's planned," Cross told the crowd. "So maybe by the end of the summer, sometime during the summer, the Commission will be back up to its complement of five Commissioners and we will have a new Chairman, too."
Cross said that he has been getting questions concerning RACES, asking what plans the FCC has to rejuvenate the organization. "The questions have been from a couple of FEMA guys who also happen to be hams," he said. "Now, in RACES, stations are certified by a civil defense organization and persons who hold an FCC-issued Amateur Radio operators license are certified by that civil defense organization as enrolled in it. I know that the term 'civil defense organization' is way out-of-date -- emergency management agencies is probably a more current term. But the terminology used in the rules reflects that RACES was created in the Cold War era when there was a concern that everyone would be ordered off the air."
Cross pointed out that RACES "seems to be used for local, state and regional events and it is administered by FEMA. The rules require that communications transmitted in RACES be approved by the organization that certified people and that they're enrolled with. Fundamentally, RACES is there to serve whatever purpose that the emergency management agency has for it. Because the emergency management agency decides whether it has a use for a RACES group, the rejuvenation, if it is even necessary, will have to come from the local or state organizations. They will have to get people interested in joining their groups if they have a use for them. Some of the people I have talked to in different government agencies wonder why we still have this service, given the way that emergency communications are run and managed today."
Amateur Radio and Pecuniary Interests
A topic that keeps popping up, Cross said, is business use of Amateur Radio, specifically transmitting messages on behalf of an employer. "Section 97.113 answers this question straight on: 'No amateur station shall transmit communications for hire or for material compensation, direct or indirect, paid or promised, except as otherwise provided in these rules.' There are two exceptions. There are exceptions for teachers who are using Amateur Radio as the control operator of a station in an educational institution as part of a classroom thing and control operators of club stations in certain cases. A station is also not allowed to transmit communication in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer. There is an exception to that rule that allows you to transmit communications that are commonly referred to as "swap nets," but eBay seems to have reduced the need for these nets. And you're not allowed to transmit communications on a regular basis which could reasonably be furnished through other radio services."
Cross said that Section 97.113 is in the rules for two reasons: It meets a statutory requirement and it is there to protect your frequencies from becoming the business radio alternative voice overflow, or "'BRAVO Service.' Because your spectrum is so valuable, if you let users such as businesses, TV stations, the National Weather Service or other users -- be they for-profit or non-profit -- use your frequencies to meet their communications needs, your frequencies will become their frequencies. All it takes is an allocation proceeding with the FCC, and your spectrum is gone. And you will be left whining about it in Internet chat rooms."
Cross pointed out the ARRL Chief Executive Officer David Sumner, K1ZZ, "had an editorial on this on April 1, 2009 in QST ["It Seems to Us: Keeping the 'Amateur' in Amateur Radio," page 9]. That's probably not the best day to date something, but you should read it. And I have plagiarized from that greatly because it is very elegant and spot on."
The bottom line, Cross said, is "that when any of us are on the air as amateurs in the ham bands, we are not pursuing financial gain for ourselves or our employers. The 'no pecuniary principle' has been reflected in the FCC regulations since 1928. It distinguishes us from commercial services. In 1993, the Commission, at your request, dropped the 'no business communications' language and simply prohibited communications on behalf of an amateur's employer or in which the amateur has a pecuniary interest. The Commission stated that any amateur-to-amateur communications is permitted unless specifically prohibited or unless transmitted for compensation or done for the pecuniary benefit for the station control operator or his or her employer."
Cross said that it does not matter what type of technology -- be it SSB, digital, slow scan TV or CW -- is used to transmit that communications: "It boils down to a simple four part test that you, as the control operator of the station, must ask yourself before you cause the station to transmit a message. One, is the communications expressly prohibited in the rules? For instance, is it music, is it obscenity, something like that. Two, is the communications transmitted for compensation? Whether it's paid or compensation in some other way, such as, 'If you get this message to a friend of mine who's on a sailboat in the middle of nowhere, I'll pay your light bill.' Or, 'Get this message to someplace and I'll buy you a new radio.' That's indirect compensation. Three, does the control operator have a pecuniary interest in the communications? That is, could he or she benefit financially? Stock trades on ham radio benefit you financially. And four, does the control operator's employer have an interest in the communications? If the answer to each of these questions is 'no,' then the communications is acceptable with the caveat that it is not on a regular basis, one which could be furnished alternatively through other radio services."
There are limits to what an amateur can do on behalf of his or her employer, Cross said, as well as limits to the extent that Amateur Radio can be used for the purpose for which other radio services were created. "'No communications on behalf of an employer' means just that," he said. "There's no exception for the 15 minutes you're on break. There's no exception for 'Gee, it's the weekend,' or there's no exception because you want to do it. If it's your employer, you cannot transmit communications on their behalf. That is a commercial communications."
Public Service Communications
The last topic Cross address concerned public service communications. "There's no rule about public service communications as such in Part 97, because most of the messages you transmit that you think of as public service communications are allowed by Section 97.111. Paragraph (a) authorizes an amateur station to transmit two-way communications including, among other things, exchanging messages with other stations in the Amateur Service and communications necessary to meet essential communications needs and to facilitate relief actions." Cross noted that most of these transmissions -- the essential communications needs and facilitating relief actions -- are two-way exchanges with messages with other amateur stations. "The rule also authorizes you to transmit one-way communications, such as transmissions necessary to make adjustments to the station -- these are your tests, your tones, tossing the carrier to see what the SWR is, that sort of thing -- and brief transmissions necessary to establish two-way communications with other stations."
Cross said that the rules cover everything we do as Amateur Radio operators: "Ragchewing, DX, contests, DXpeditions, county hunting, tuning up, everything. Ninety-nine percent of our communications fall under the rules that are there."
Emergency communications, by their nature, involve an element of immediacy, immediate safety of property and life. "Reporting where damage is, what happened after a tornado goes through or where power lines are down, is certainly public service communications and it's allowed under 97.111, but it may not involve an immediate safety of life and property," Cross explained. "A bridge washed out, for example, may need a more immediate response than downed trees, and reporting that is already allowed as just two-way communications between stations. A car floating, a car with occupants floating down a river is clearly an emergency situation. In cases like that, the rules already provide that at all times and on all frequencies, each control operator must give priority to stations providing emergency communications. I have never heard of a case where a ham station has come on a repeater or a frequency and said, 'I have an emergency message,' and someone said, 'Wait your turn.' That's not your style."
The Dayton Hamvention was one of the first events Smith has attended in her role as Special Counsel. Cross introduced Smith, explaining that he used to work for her and that she was "one of the best people that we possibly could get for this job, because before she came to the Wireless Bureau, she had worked in mass media. After she had been in the Wireless Bureau, Laura had been the president of a trade association in Washington. Many of the issues that come up with other entities using amateur spectrum are entities that are either in mass media services or in land-mobile services and they are basically lusting after your bands. So we are fortunate now that when someone calls up, Laura has this breadth of knowledge of not only what the amateur stuff is, but where [land-mobile and mass media services] actually really should belong. And she can counsel them very gently that they need to get licensed here and not, you know, where they think they are. This is something you don't see. Believe it or not, this is a tremendous help to you."
He mentioned that Smith plans to stay in this position for the long haul: "So if you have any ideas about a short-timer or think you're going to get away with it, plan on about 15 years down the road. In the meantime, behave yourselves!"
Smith explained that when she took over the Amateur enforcement position earlier this year, the job had changed a bit from when Hollingsworth was in the office. "This job used to be in the Spectrum Enforcement Division down in DC; it was a remote position in a DC office," she explained. "It is no longer in that Division. I am actually a Field Agent. I'm attached to the FCC Field Office, I'm in the Northeast Region and my supervisor is the Regional Director for the Northeast Region." She told the crowd that she has spent a large portion of her time going through all the files that had accumulated, about 430 cases, while the position was vacant.
She explained the different types of complaints her office receives, such as complaints dealing with criminal investigations, technical violations, harassment and language complaints, malicious interference complaints and unlicensed users.
Smith also handles RFI complaints. Saying that these complaints are "ultimately going to be the most troublesome," she explained that there are two kinds of RFI complaints. "The first type of RFI complaint I get are the ones where your neighbors are complaining about you. You guys are causing interference to their television or to their radios or their telephone. The Commission generally tells them if you are a licensed amateur operator operating in the parameters of your license, then the Part 15 device that you are causing interference to is subject to that interference, and the rules state that very clearly. We suggest that they either work with you or they get a filter; those are the two suggestions."
Smith , in cooperation with the ARRL Lab, also handles utility line interference complaints. "This one, you would think, would be easy to resolve -- the power line is causing interference, the utility will come out and fix it and everything will be fine. Not quite so easy," she explained. "Those of you that have been experiencing it for 3, 4, 5, 10, 12 years know that in fact, that is not what happens. What I am discovering is that the utilities quite simply don't know how to fix the problem. They can't identify the noise. What they will do is they will go out and will find 15 sources of noise. They will fix these 15 sources of noise and then they will come back to me with this detailed list of these 15 sources of noise that they have fixed. Yea! We're all done. No -- they haven't fixed your noise. So they don't quite understand the concept of 'Don't just run out and fix everything you see, that's irrelevant to the amateur.' The amateur wants you to fix their noise."
Smith described that the first step the utilities need to do is to go to the amateur's house and listen to the noise and determine exactly what they're hearing. "This way, when they fix it, you can ultimately figure out if you have in fact fixed their noise. I'm trying to figure out a way with the Lab as to how we can best tell the utilities that they really need to think about how their processes work and what we can do to educate them so they can get out and fix this."
Smith has also given utility companies time limits to fix the noise complaints. "I am telling them, 'If you go out and you can't fix it, every two weeks you have to report back to me in writing why you can't fix it.' Utilities are, generally speaking publicly traded companies, so what happens is that they have a Board of Directors that they answer to. Those people are not going to want them to waste time and energy writing this crazy woman in Gettysburg every two weeks a detailed report. And believe you me, if they miss their deadline, I call them and tell them 'You've missed your deadline. I need your report.' I have spoken to more heads of utilities in the last three weeks than I ever care to speak to again. They have no qualms about calling me, saying 'We can't meet the deadline.' And I explain to them that's fine, I'll just write up this nice little letter [saying] you can write your check to the federal government."
Smith suggested to the amateur community "that we as a collective -- you guys and me -- we can have a great relationship, we can do this the easy way. You guys can, in fact, follow the rules and remember that when you signed up to become an amateur, you actually committed to adhere to the Commission's rules. I'm going to strongly suggest that you hold to that. If you don't we can do this the difficult way, and I am more than willing to that if it comes down to it."
Questions and Answers
Cross and Smith then took questions from the audience. They concerned grandfathering Advanced class license holders to Extra class, enforcing Amateur Radio rules on stations originating outside the US, what type of internal review is required before a Notice of Apparent Liability is issued, keeping undesired hams off a repeater system, issues with D-STAR repeaters allowing Internet content to be carried on amateur frequencies and establishments that sell 10 meter radios disguised as 11 meter radios.
Smith also told the crowd why she has not yet become a licensed Amateur Radio operator: "My father-in-law is Richard Smith. He is the former Chief of the Field Operations Bureau. The Field Operations Bureau was the precursor to the Enforcement Bureau. When Dick started his career at the FCC, he worked in the LA Field Office as an engineer; one of the duties that he had while he was out there was to administer the Amateur Radio tests. His expertise just so happened to be in the Code. He is an incredible operator. And so when I decided to take this job, I did not want to run out and get my license before I took the job for a lot of reasons. Not the least of which is I felt it would be a sham -- I wasn't an amateur before I took the job, I didn't want you to think that I was selling you so short that I was going to run out and get my license to try and validate myself for this industry. Instead, I said that I would wait and take the exam later and become an amateur as I got to know the community. When I told the story to Dick and I said I was thinking about getting my license, he said to me, 'You will not get your license until you can pass the code part of the test.' Unfortunately, he followed that up with a caveat, which was 'I will be there to oversee the administration of the test to determine whether or not you are competent and qualified to be an amateur.' So I have to learn code -- I obviously do not know it." Smith said she plans on learning CW this summer, along with her six year old daughter.
Cross closed the forum, quipping, "For those of you who are concerned, I made sure she went by the Vibroplex booth, and we also stopped by the Begali booth. So she got to see what the minimum requirements are for proper CW."