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ARRL Asks FCC to Dismiss Petition Seeking Declaratory Ruling on Encoded Message Rule

12/06/2019

ARRL has asked the FCC to dismiss a Petition for Declaratory Ruling filed by New York University (NYU), that in ARRL’s view proposes a new interpretation of the rule — Section 97.113(a)(4) — prohibiting “messages encoded for the purpose of obscuring their meaning.” In its December 2 filing, ARRL said NYU’s call to “clarify” the rule’s meaning to prohibit “effectively encrypted or encoded messages, including messages that cannot be readily decoded over the air for true meaning,” is not only vague but could weaken the prohibition against encryption.

ARRL pointed out that the FCC rule prohibiting “messages encoded for the purpose of obscuring their meaning,” is essentially the same as what appears in the International Telecommunication Union (ITU) Radio Regulations applying to all countries. ARRL made clear that it continues to support rules prohibiting encrypted messages on the amateur bands, even for limited emergency communication purposes, and the ARRL Board reiterated that opposition last July.

In its comments, ARRL said that NYU’s request that the FCC adopt its suggested language would introduce ambiguity and confusion in the application of a rule that’s clearly understood to prohibit encrypted messages. ARRL noted that Morse code is encoded and would fall within the prohibition as proposed by NYU. “The very fact that messages sent in CW are ‘encoded’ by any definition of the term starkly demonstrates the problem with this proposal,” ARRL said.

ARRL said that adding the word “effectively” would make the definition even more vague by including all encoded messages plus an additional set of undefined messages, the extent of which is unknown. Similarly, ARRL maintained, it is “unclear and undetermined what the petitioner may mean by “effectively encrypted.” Encryption is a binary proposition, ARRL pointed out, and the meaning either is hidden from all but the intended recipient(s) or it is not; a message cannot be considered “encrypted” if the means to enable non-recipients to understand the message are generally available.

“Adding the modifier ‘effectively’ to ‘encrypted’ converts clear meaning into vague uncertainty,” ARRL asserted. FCC rules explicitly authorize radio amateurs to use new digital techniques on the condition that the techniques be described adequately and available publicly, ARRL said, pointing to multiple filings in the FCC record from individuals who have successfully used the public descriptions to decode the digital techniques with which NYU has expressed concern.

NYU has not presented any information to demonstrate that the FCC’s current rule is not being complied with by digital innovators, ARRL said, and adoption of NYU’s petition would create more questions for the FCC than it would answer when the FCC may be called upon to apply the petition’s vague language in specific cases.

“We are unaware of any enforcement case in which the Commission is experiencing difficulty in understanding and applying the prohibition against encrypted messages,” ARRL maintained.

What the petitioner regards as violations “augurs against its proposal to interpret in some new fashion the international and domestic prohibition,” ARRL said. “For example,” ARRL continued, “the petitioner asserts, without any basis in fact, that dynamic compression techniques effectively encrypt or encode communications.” Such techniques are widely recognized ways to increase the efficiency of digital transmissions,” ARRL noted that comments in the record clearly state that signals using dynamic compression are being decoded by third-party listeners.

“The Commission has addressed amateur use of digital signals in multiple proceedings [and] there has been no showing that the current regulatory scheme is deficient in prohibiting encrypted messages,” ARRL concluded. “To the contrary, adoption of the petitioner’s proposals would add confusion — rather than clarity — and diverge from the international consensus on prohibiting encrypted messages while fostering vibrant experimentation with digital techniques.” 



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