Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, DC 20554

In the Matter of                                                          )                                                                                                                                                                                                                   WP Docket No. 10-72             

                                                                                 )

Amendment of Part 97 of the Commission's Rules      )

Governing the Amateur Radio Service                        )

                                                                                 )

TO:      The Commission

COMMENTS OF JOHN B. JOHNSTON

1. THE COMMISSION'S PROPOSED AMENDMENT        

            1.0.  In the subject Notice of Proposed Rulemaking ("Notice"), the Commission proposes, on its own motion, to amend its rules by adding a new paragraph.^[1]  The amendment (in bold text) would read:

PART 97--AMATEUR RADIO SERVICE

Subpart B--Station Operation Standards

            § 97.113 Prohibited transmissions.

                  (a) ***

                        (3)  Communications in which the station licensee or control operator has a pecuniary interest, including communication on behalf of an employer, with the following exceptions:

                              (i) A control station operator may participate on behalf of an employer in a government-sponsored emergency preparedness or disaster readiness test or drill, limited to the duration and scope of such test or drill, and operational testing immediately prior to such test or drill.

                              (ii) ***

2. PROPOSED AMENDMENT WOULD BE HARMFUL TO OUR AMATEUR SERVICE

             2.0.  The Notice is not, as it is presented in the Notice, merely a simple straightforward proposal to correct an unnecessary minor obstacle in the path of a few bona fide amateur radio operators^[2] who want to participate in government-sponsored emergency preparedness or disaster readiness tests and drills while they are on their employer's time clock.  Rather, it seems to confirm and encourage a very harmful practice that heretofore has only been suspected of going on: governmental entities encouraging their employees to misuse our amateur service spectra - with its less-expensive radio apparatus and its easy-to-get licenses^[3] - in carrying out their assigned work duties.  Such is being practiced as an alternative to utilizing the appropriate radio services designed specifically for their various types of governmental duties.  This now-confirmed practice threatens to overwhelm our amateur service.

            2.1.  The Commission's proposed paragraph ("paragraph") would limit the authorization to only the operator of a control station.^[4]   This would have such small applicability as to also render the proposed rule practically meaningless.  To make the rule workable, therefore, it would have to apply to certain other or all types of amateur stations.  Presumably, this limitation is an oversight.

            2.2  The paragraph overlooks providing a companion authorization for the station licensee.^[5]  This renders the paragraph meaningless.  An already codified rule^[6] prohibits the transmission of communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer.  No legitimate radio transmissions, obviously, can occur without there being an authorization for said amateur station and its licensee.  Presumably, this omission is also an oversight.

3.  FULLER DISCLOSURE

            3.0.  The paragraph does not disclose the full extent of the proposal.  It is, moreover, at complete odds with statements in the Notice.  The paragraph is far more reaching than just providing a harmless narrow exception to a rule based upon an obsolete quaint notion.  It is clearly of great significance because it would authorize a massive breach of the most basic fundamental domestic and international core principle that an amateur radio operator is a duly authorized person interested in radio technique solely with a personal aim and without pecuniary interest.   

            3.1.  The paragraph as written, moreover, would be highly confusing to most readers.  This is unacceptable because of the necessity of having all relevant regulations be understandable and meaningful to our diversified amateur service community. ^[7]   In this instance, it would also have to be abundantly clear to the governmental agencies, their employees, and the employers for whom the paragraph is intended to accommodate.  It should be more to-the-point, complete, candid and forthcoming.  It should be stated, moreover, in much plainer language.  

            3.2.  The paragraph  should more properly be located under Subpart E - Providing Emergency Communications.  That is where a reader would logically expect to find enabling authorization on the important matter of emergency preparedness and disaster readiness tests and drills, not in a fifth-level sub-paragraph under the rubric of Prohibited transmissions.  It would, therefore, be more properly codified in a new 47 C.F.R § 97.409 titled properly Emergency preparedness and disaster readiness test or drill.  

            3.3.  Certain essential terms are not defined in the Commission's paragraph.  They include: employer, emergency, disaster, preparedness, test, drill, duration, operational and scope.  These terms need definition in the context of the proposed rule in order to make it meaningful to those regulated.  Presumably, this omission is to signal that the Commission does not intend to enmesh itself in resolving the disputes that would arise whenever our amateur service community would have to deal on radio issues with local, state and federal governmental agencies and intends, rather, to delegate the definitions to those entities.  This should be affirmed and disclosed.

            3.4.  The paragraph would greatly hamper the intercommunication activities of bona fide amateur operators.  For example, when attempting to coordinate channel usage with local government compensated professional operators,^[8] such as emergency service providers, responders, administrators, clerks, etc., our bona fide amateur operators would be disadvantaged in attempting to select channels appropriately and in attempting to make the most effective use of our amateur service frequencies.^[9] 

            3.5.  The paragraph does not withhold any specific amateur service frequency band or segment from government-sponsored emergency preparedness and disaster readiness tests and drills on behalf of employers.  Presumably, therefore, the proposal is to open our entire amateur service radio spectra to governmental agencies for their purposes.  This critical matter should be affirmed and disclosed.

            3.6.  To comport with another core principle,^[10] the paragraph should affirm and disclose that priority is to be conceded by bona fide amateur operators to government-sponsored emergency preparedness and disaster readiness tests and drills on behalf of employers in places where our amateur service is regulated by the Commission.  To be required to give priority to another party is, in effect, to have secondary status.

            3.7.  To comport with still another core principle,^[11] it should be affirmed and disclosed that no messages shall be encoded for the purpose of obscuring their meanings.  The controversial issue of Ten signals^[12] should be addressed.  It should be made clear that there should not be any expectation of any communication privacy. 

4.  A REWRITTEN PLAIN LANGUAGE VERSION WITH ADDITIONAL DISCLOSURE

                   4.0.  The above information - together with that not disclosed in the paragraph - is included the following more comprehensive plain language version:

PART 97--AMATEUR RADIO SERVICE

Subpart E--Providing Emergency Communications

            § 97.409  Emergency preparedness and disaster readiness test or drill.

                  (a)  Amateur station licensees and control operators are  authorized to provide communications on behalf of any employer during emergency preparedness and disaster readiness tests or drills sponsored by any federal, state, commonwealth, district, territory, possession, county, parrish, borough, city, village, township, island, islet, cay or other local governmental entity within the United States.

                  (b)  The station license and control operator may accept compensation for providing communications under this authorization.

                  (c)  This authorization is limited to the duration and scope of each such test or drill and to operational testing immediately prior thereto. 

                  (d)  The terms employer, emergency, disaster, preparedness, test, drill, duration, operational and scope shall have the meanings determined by the sponsoring governmental entity.

                  (e)  Any station transmitting under this authorization may utilize any and all channel(s) in any frequency band, subject to the privileges of its control operator. 

                  (f)  These tests and drills shall have priority over all other amateur station transmissions in places where the amateur service is regulated by the FCC.

                  (g)  No message shall be encoded or encrypted for the purpose of obscuring its meaning.  Operational codes for the purpose of facilitating communications, such as Ten signals, whose meanings have been documented publicly are not considered to be encoding or encryption.  

                   (h)  There should be no expectation of communication privacy.

5.  NOTICE DOES NOT ADDRESS CO-AMENDMENTS

            5.0.  Still other regulations would require amendment in order to implement the Commission's proposed amendment.  Firstly, the definition of the amateur service^[13] would have to be amended to delete the phrase and without pecuniary interest.^[14]  This core principle holds that any person having a pecuniary interest in conducting amateur service communications is ineligible to be a duly authorized amateur service licensee.  Because participation on behalf of an employer involves compensation, there is a very obvious pecuniary interest conflict.  That core principle, therefore, would become passé.     

            5.1.  Additionally, the core principle^[15] that, at all times and on all frequencies, each control operator must give priority to stations providing emergency communications, except to stations transmitting communications for training drills and tests in RACES would also would also become passé.  The phrase except to stations transmitting communications for training drills and tests in RACES would clash with the Commission's proposed amendment because RACES is already administered by governmental entities.^[16]    

6.  GENERAL COMMENTS

               6.1.     The Notice claims that one of the fundamental principles underlying the amateur service is "[r]recognition and enhancement of the value of the amateur service to the public as a voluntary noncommercial communication service, particularly with respect to providing emergency communications."^[17] That statement is misleading and not at all forthcoming in that it omits the critical conditioning lead-in text.

               6.2.  That missing text reads: "The rules and regulations in this part are designed  to provide an amateur radio service having a fundamental purpose as expressed in the following principles:

                        (a) Recognition and enhancement of the value of the amateur service to the public as a voluntary noncommercial communication service, particularly with respect to providing emergency communications; 

                        (b) Continuation and extension of the amateur's proven ability to contribute to the advancement of the radio art; 

                        (c) Encouragement and improvement of the amateur service through rules which provide for advancing skills in both the communication and technical phases of the art;  (d) Expansion of the existing reservoir within the amateur radio service of trained operators, technicians, and electronics experts;

                        (e) Continuation and extension of the amateur's unique ability to enhance international goodwill.^[18] 

          6.3.  Our amateur service community has, until now, had good reason to believe that faithful adherence to the Commission's rules^[19] would result absolutely in fulfilling those five core principles of fundamental purpose of our amateur radio service in our United States.^[20] Our long-held respectful belief in this policy would be severely shaken were the Commission to adopt the paragraph proposed in its Notice.

            6.4  The phrase particularly with respect to providing emergency communications should not be taken out of context and presented as the justification for an initiative that would shift to our amateur service new communications on behalf of employers during emergency preparedness and disaster readiness tests and drills.  The rules already establish four unique provisions for providing emergency communications.^[21]  They are 1) access to the Alaska-Private Fixed Service;  2) SOS Mayday calling to provide essential communication needs in connection with the immediate safety of human life and immediate protection of property when normal communication systems are not available;  3) communication means of last resort by and for a station in distress; and 4) the RACES. ^[22]

            6.5.  The five core principles stated in the basis and purpose for the Commission's rules, moreover, are unique to places where our amateur radio services^[23] are regulated by the Commission.^[24]  They have made it possible for our amateur service in the United States to rise and become the outstanding national resource that it is.  Under the Notice's proposal, regrettably, they would become but secondary considerations to the predictable continuing series of routine 24/365 federal, state and local government-sponsored tests and drills on behalf of employers.  Our amateur service community would be at a distinct disadvantage when attempting self-policing when our spectra are being usurped by these entities.

            6.6.  That is most certain because the Notice reports that many state and local governments and public safety agencies incorporate amateur radio operators and the communication capabilities of the amateur service into their emergency planning.  Hospitals, emergency operations centers, and police, fire, and emergency medical service stations, moreover, have emphasized the participation of their employees who are amateur operators in emergency and disaster drills and tests. ^[25] 

            6.7.  The Notice states that the Commission believes that the public interest will be served by a narrow exception to the prohibition on transmitting amateur communications in which the station control operator has pecuniary interest or employment relationship, and that such an exception is consistent with the intent of the amateur service rules.^[26]  The Notice, however, proposes an exceptionally broad authorization that would harm severely our amateur service - a long-standing legitimate radio service recognized domestically and internationally.  It would result in a governmental takeover of our amateur service spectrum by local, state and federal agencies throughout the United States for use by compensated professional operators in communicating for employers. 

            6.8.  The Notice stems from a grand misconception, most importantly, when it tentatively concludes that the proposed amendment would not disturb the core principle of our amateur service as a radiocommunication service for the purpose of self-training, intercommunication and technical investigations carried out by amateurs, that is, duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest.^[27]  Implementation of the amendment would, rather, be harmful to what we do best:  Provide the public with emergency communications through our ad hoc networks using our unique array of  abilities: know-how capability, situational adaptability, technical flexibility, operator availability, et al.  These abilities exist because of the relatively flexible adaptive nature of our communication systems made possible only because of our practical hands-on familiarity with the underlying technology.  No other radio service comes close to our amateur service in these abilities. ^[28] 

7.  COMMISSION-REQUESTED COMMENT

            7.1.  The Notice seeks comment on whether to amend the rules to permit amateur radio operators to participate in government-sponsored emergency and disaster preparedness drills and tests, regardless of whether the operators are employees of the entities participating in the drill or test.  It acknowledges that many state and local governments and public safety agencies incorporate amateur radio operators and the communication capabilities of the amateur service into their emergency planning.  It reveals that hospitals, emergency operations centers, and police, fire, and emergency medical service stations have emphasized the participation of their employees who are amateur operators in emergency and disaster drills and tests.^[29]   

            7.2.  The Commission's proposed action should establish for our emergency service responders an alternative to the more structured limitations of the Part 90 Private Land Mobile Radio Services and other radio services.  It would open up to them the spectra allocated to the amateur services that heretofore have been regulated under rules designed to promote voluntary noncommercial communication public service, advance the radio art, advancing technical skills, and enhance international goodwill.  It would free emergency responders from mandatory coordination and other regulatory obligations.  It would, furthermore, enable them to make use of our less expensive, non-certificated amateur radio station apparatus.

            7.3.  For the Commission to adopt this predictably harmful paragraph, unfortunately, would be a major disservice to our American public.  It would be detrimental to the work carried out by bona fide amateur radio operators ever since the inception of radio.^[30]  It would seriously disrupt our making valuable contributions in providing voluntary noncommercial communication public service, advancing the radio art, advancing technical and communication skills, expanding our Nation's reservoir of trained operators, technicians and electronic experts, and enhancing international goodwill.  Our amateur service would be harmed, and the United States would be harmed, from the Commission's downgrading of our legitimate amateur service communications to a secondary status by virtue of overlaying, with priority, upon our spectra those intercommunications conducted by compensated professional operators on behalf of employers.

8.  RECOMMENDATION

            8.0.  Governmental agencies and employers in our United States have access to other government and non-government radio systems.  Rather than curtail and harm the traditional core principles of our amateur service by overlaying our intercommunications with governmental intercommunications for employers, therefore, the more rational model to emulate is that of the three programs sponsored by our Army, Navy and Marine Corps, and Air Force.  Operated since 1925, the Military Affiliate Radio System now relies upon over 5,000 volunteer amateur operators who use their station apparatus for transmitting messages for our military on non-amateur service government radio channels.  Accepting surplus military radio apparatus and other perquisites as compensation is not an issue.   

            8.1.  For example, the Commission's former Part 99 Disaster Radio Service could be resurrected and revitalized with some of the unused spectra recovered from the 2009 termination of analog broadcast television.  Suitably modified amateur station apparatus could be used jointly by volunteer bona fide amateur operators as well as compensated professional operators under rules dedicated to and designed exclusively for public safety and homeland security communications.

9.  CONCLUSION

            9.0.  There is, unquestionably, an enormous unmet demand for better radio communications available to emergency and disaster responders.  The Commission should address this demand with more imagination and creativity than simply overlaying our amateur service spectra with communications on behalf of employers in government-sponsored emergency preparedness and disaster readiness tests and drills. 

            9.1.  Please provide our American public with the regulatory wherewithal for systems that better satisfy the need for better public safety and homeland security communications.  Allow us to volunteer our time and proven technical and operational abilities to public safety and homeland security communications in an enlightened way that does not harm our amateur radio service and frustrate our efforts toward achieving its basis and purpose.  Do not encourage or allow governmental agencies to overwhelm our spectra. 

            9.2  Please permit us to continue on unfettered in our pursuit of providing voluntary noncommercial communication public services, advancing the radio art, advancing technical and communication skills, expanding our Nation's reservoir of trained operators, technicians and electronic experts, and enhancing international goodwill.  

            9.3  Please do not adopt the amendments proposed in the Notice. 

Respectfully submitted,

John B. Johnston

Station licensee W3BE

FRN 0003115342

May 10, 2010  

^[1]  Appendix to Notice

^[2]  The term bona fide amateur operator is in reference to the specific definition of an amateur in SEC.3. [47 U.S.C 153] Communications Act of 1934, as amended and No. 1.56 of the international Radio Regulations (RR):  A duly authorized person interested in radio technique solely with a personal aim and without pecuniary interest.  A licensee who accepts compensation for being the control operator of an amateur station, therefore, obviously has such a pecuniary interest and, therefore, is not - by definition - a bona fide amateur radio operator. 

^[3]  The Technician Class operator license, which authorizes some 95% of all possible privileges, requires answering at least 26 questions correctly in a 35 question written examination administered by our uncompensated volunteer examiners.  Training service providers guarantee passing after as little as 10 hours study.

^[4]  The term control station is not defined in 47 C.F.R. Part 97. One popular reference is to an auxiliary station in a point-to-point telecommand link from the control point to a distant remotely controlled station.  BE Informed No. 31 Hamslanguage.  http://www.w3beinformed.org/

^[5]  47 C.F.R. § 97.103.

^[6]  47 C.F.R. § 97.113(a)(4).

^[7]  There is no minimum age for licensees in our amateur radio services.

^[8]  The term compensated professional  operator is used herein to denote a licensee who cannot be classified as an amateur because of having a pecuniary interest by virtue of accepting compensation for being the control operator of an amateur station.

^[9]  47 C.F.R. § 97.101(b).

^[10]  47 C.F.R. § 97.101(c).

^[11]  47 C.F.R. § 97.113(a)(4).

^[12]  Sometimes referred to as Ten-codes, Ten signals are code words used to represent common phrases in voice communication, particularly by law enforcement and in CB radio service communications.  

^[13]  47 C.F.R. § 97.3(a)(4).

^[14]  SEC. 3. [47 USC 153](2) of the Communications Act of 1934; No. 1.56 of the international Radio Regulations (RR); and 47 CFR § 2.1(c) would need similar revision for regulatory harmonization.

^[15]  47 C.F.R. § 97.101(c). 

^[16]  47 C.F.R. § 97.407.

^[17]  Notice at paragraph 2.

^[18]  47 C.F.R. § 97.1.

^[19]  47 C.F.R. Part 97.

^[20]  Other countries reportedly consider amateur radio to be a form of recreation.

^[21]  47 C.F.R. Part 97 Subpart E - Providing Emergency Communications.

^[22]  47 C.F.R. § 97.407(b) makes available the frequency bands and segments and emissions authorized to the control operator to stations transmitting communications in RACES on a shared basis with the amateur service.  In the event of an emergency which necessitates invoking the President's War Emergency Powers under the provisions of section 706 of the Communications Act of 1934, as amended, 47 U.S.C. 606, RACES stations and amateur stations participating in RACES may only transmit on the frequency segments authorized pursuant to 47 C.F.R. Part 214.    47 C.F.R. 214.4 provides that (a) Whenever it is determined necessary to exercise, in whole or in part, the President's emergency authority over telecommunications, the Director, OSTP, will exercise that authority as specified in Executive Order 12472 (49 FR 13471; 3 CFR, 1984 Comp., p. 193);  (b) In this connection, and concurrently with the war or national emergency proclamation by the President, the Director will: (1) Authorize the continuance of all frequency authorizations issued by the National Telecommunications and Information Administration (NTIA) and the Federal Communications Commission (FCC), except as they may otherwise be modified or revoked by the Director, OSTP, in the national interest.

^[23]  47 C.F.R. § 97.3(a)(2).  The amateur radio services are: the amateur service, the amateur-satellite service and the radio amateur civil emergency service RACES.

^[24]  47 C.F.R. Appendix 1 to Part 97:  In ITU Region 2, the territorial limits of the 50 United States, District of Columbia, Caribbean Insular areas [Commonwealth of Puerto Rico, United States Virgin Islands (50 islets and cays) and Navassa Island], and Johnston Island (Islets East, Johnston, North and Sand) and Midway Island (Islets Eastern and Sand) in the Pacific Insular areas.  In ITU Region 3, the Pacific Insular Territorial limits of American Samoa (seven islands), Baker Island, Commonwealth of Northern Mariana Islands, Guam Island, Howland Island, Jarvis Island, Kingman Reef, Palmyra Island (more than 50 islets) and Wake Island (Islets Peale, Wake and Wilkes).

^[25]  Stations transmit, not humans.  A radio operator can only cause or allow a station to transmit.

^[26]  Notice at paragraph 6.

^[27]  Notice at paragraph 6.

^[28]  BE Informed No. 44 Providing Emergency Communications.  http://www.w3beinformed.org/

^[29]  Notice at paragraph 3.

^[30]  At the turn of the 20^th Century.