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It Seems to Us: Pecuniary Interest

09/01/2009

In the April issue we talked about how "no pecuniary interest" -- one of the defining principles of Amateur Radio -- has been reflected in the FCC rules over the years. Without going into detail at that time we observed that "there are limits to what an amateur can do on behalf of his or her employer." There seems to be some confusion as to what those limits are, so here are the details.

The problem is, we have become victims of our own success. We have developed reliable, cost-effective communications capabilities; it's not an empty boast when we say that our equipment and skills allow us to make contact "when all else fails." As I bragged to a friend the other day, "Give me my radio, a car battery, and a piece of wire and I will be able to communicate." Several radio services are available to businesses and other organizations -- commercial, government, and non-profit -- with a need for backup communications, but in these cash-strapped times it shouldn't surprise us that Amateur Radio is seen by some as an attractive alternative. After all, our equipment is relatively inexpensive, licensing isn't particularly difficult, and the Amateur Radio community has a well-deserved reputation for public service. So, their managers think, all they have to do is to get their employees licensed as amateurs and give them some equipment and training, and they can check off that box on their business continuity plan.

But the rule quoted at the top of the page is pretty clear: communications on behalf of an employer are prohibited. §97.113(a)(2) provides additional emphasis, prohibiting "Communications for hire or for material compensation, direct or indirect, paid or promised, except as otherwise provided in these rules." The "otherwise provided" exceptions are narrowly drawn for occasional "swap net" activity, to allow teachers to use an amateur station in classroom instruction, and to allow the control operator of a club station to be paid for the sort of code practice and bulletin transmissions conducted by W1AW -- in fact, the rule was written specifically for W1AW.

The FCC itself muddied the water somewhat in 1999 when it declared, in denying a petition to amend §97.113 to permit licensed emergency personnel to operate while engaged in disaster relief on paid duty status, that the amendment was unnecessary because this was already permitted. The Commission reiterated in 2006 that "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." This can be reconciled with "no communications on behalf of an employer" only if viewed narrowly, in the context of "transmissions necessary to meet essential communication needs and to facilitate relief actions" as authorized by §97.111(a)(2). Also, of course, communication that is essential to the immediate safety of human life or the immediate protection of property is always permitted when normal communication systems are not available.

In response to numerous requests for clarification -- most of them submitted in the hope of hearing a different answer -- the FCC recently has spelled it out very clearly. For example, writing on July 16 to a hospital employee who had objected to a Commission staff interpretation that hospital employees cannot transmit communications on behalf of the hospital while they are on duty, Roger S. Noel, Chief, Mobility Division, Wireless Telecommunications Bureau, supported the interpretation and went on to observe: "Moreover, the rule does not draw any distinction based on the station operator's duty status at the time of the transmission." In other words, it doesn't matter whether the employee is on duty or not. In either case, transmitting communications on behalf of an employer is prohibited.

When the ARRL Board of Directors met on July 17-18, the appropriate use of Amateur Radio was very much on the Board members' minds -- so much so that the Board authorized President Harrison to appoint an ad-hoc committee to study the issue and prepare suggested guidelines. The committee will be asked to work on an accelerated schedule, reporting to the Executive Committee within 30 days.

The ad-hoc committee may find a need for additional clarification of the rules, but figuring out what is legal -- and what isn't -- is not the whole story. When the FCC amended Part 97 in 1993 to give radio amateurs the greater flexibility that we had asked for, they also gave us greater responsibility for avoiding exploitation of our precious resources: our access to the radio spectrum and the equipment and skills to use it responsibly.

The committee will be trying to walk a narrow path. On one side, amateurs must be able to fulfill our mission of providing voluntary emergency communications to the public. On the other, this mission does not extend to providing a cheap alternative to other radio services that were created specifically for the use of business, non-profit and government entities. At the end of the day, the committee's work should help us all understand what it means to be a radio amateur in the 21st century.

David Sumner, K1ZZ
ARRL Chief Executive Officer



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