[arrl-odv:18194] Re: Fw: WOW LOOK AT THIS!
Chris, Based on your comments, it sounds to me that Dave needs to make some corrections to his April 2009 QST editorial. In that editorial Dave discussed the "simple" four-part test as follows: 1. Is it expressly prohibited in the rules (music, obscenity, etc.)? 2. Is it transmitted for compensation? 3. Does the control operator have a pecuniary interest, that is, could he or she benefit financially? 4. Does the control operator's employer have a pecuniary interest? Dave then says that if the answer in each case above is "no" than the communication is acceptable to the FCC with one additional caveat: To guard against the systematic use of Amateur Radio for non-amateur purposes, there is a prohibition on "communications, on a regular basis, which could reasonably be furnished alternatively through other radio services." Item four in Dave's (the FCC's?) test makes it rather clear to me that pecuniary interest is the key here, not simply the vague expression "on behalf of one's employer." If push comes to shove, I think the ARRL Board should seriously consider petitioning the FCC to add some language in 97.113 similar in spirit to the RACES language that permits a limited number of hours for emergency drills. Before taking such a drastic step, however, I think we should try to convince Bill Cross that his interpretation of 97.113 is too restrictive. 73, K5MC ----- Original Message ----- From: Chris Imlay To: arrl-odv Sent: Thursday, October 22, 2009 8:28 AM Subject: [arrl-odv:18193] Re: Fw: WOW LOOK AT THIS! Careful, now, Mickey; I agree with you that the term "on behalf of" in Section 97.113(a)(3) is different than "for the pecuniary interest of." "Pecuniary interest" is not the test when the communications are made by an employee. Rather, a communication "on behalf of" one's employer is, as it appears in the rule, an example of prohibited communications. It stands alone. Asking whether a communication "on behalf of" one's employer has any pecuniary benefit to the employer is to apply a test that is not found in the rules. I certainly concede that "on behalf of" one's employer is subject to SOME case-by-case interpretation, but not much, and not so much that if pecuniary benefit to the employer is not present, it is therefore OK. It seems to me that if the communications are with reference to the business activities of the employer, the rule prohibits the communications (absent a waiver). An employee of a hospital participating in drills that include even hypotheticals to prepare for the emergency communications involving the hospital's work is, I will assure you, in the view of the Wireless Bureau and the Enforcement Bureau, not kosher absent a grant of the waiver. 73, Chris W3KD Christopher D. Imlay Booth, Freret, Imlay & Tepper. P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG -----Original Message----- From: Mickey Cox <mcoxk5mc@bellsouth.net> To: arrl-odv <arrl-odv@reflector.arrl.org> Sent: Wed, Oct 21, 2009 11:35 pm Subject: [arrl-odv:18192] Fw: WOW LOOK AT THIS! ODV, Below are some comments I emailed earlier this evening to Dale W5RXU and also forwarded to some Delta Division officials. I think the ARRL Board should show some leadership on this issue by publicly stating that communications "on behalf of one's employer" is NOT necessarily equivalent to communications in which the control operator's employer has a pecuniary interest. It seems to me that the W1AW operator situation should make the ARRL Board realize that it needs to take a strong stand on this issue. 73, Mickey K5MC ----- Original Message ----- From: Mickey Cox To: w5rxu@flash.net Sent: Wednesday, October 21, 2009 7:17 PM Subject: Re: WOW LOOK AT THIS! Dale, The new item in the FCC's public notice dated October 20 is the process in which a government entity conducting a drill can request a waiver of the rule spelled out in 97.113(a)(3). This rule prohibits an amateur station from transmitting communications "in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer." In other words, communications that promote the pecuniary interest of the control operator's employer are prohibited. My guess is that the FCC will rarely grant such waivers. My personal preference is that the FCC should not have even offered the possibility of a waiver as described. However, I continue to believe that communications during drills can be designed such that the communications do not promote the pecuniary interest of the control operator's employer. When I think of a drill such as the ARRL's Simulated Emergency Test (SET), for example, the test messages are designed to be "make believe" to start with and I don't see how such messages/communications promote the pecuniary interest of the control operator's employer. For example, let's assume I'm a ham who is also employed at ABC Hospital. If I transmit a radiogram during the SET from the ABC Hospital club station (or from my home station for that matter) signed by "Dr. John Doe" requesting XYZ medicines, how does that promote the pecuniary interest of my employer? It's simply a test message that I have made up for the drill. Communications "on behalf of one's employer" and communications in which the control operator's employer has a pecuniary interest are not necessarily the same thing. For example, the W1AW operators are paid for operating the club station at ARRL Headquarters; rule 97.113(d) allows them to be compensated and not be in violation of rule 97.113(a)(2). Surely the telegraphy practice and information bulletins transmitted by the W1AW operators are communications "on behalf of their employer" to a significant degree, but these communications do not directly promote the pecuniary interest of the ARRL. Of course, if the bulletins did include such items as encouraging one to become a League member or to donate to the League's spectrum defense fund, etc., then such communications could certainly be considered as promoting the pecuniary interests of the ARRL. (It is important to note that the exception granted in 97.113(c) and 97.113(d) is with regard to communications for hire or material compensation and not to the pecuniary interest of the control operator's employer.) In conclusion, I think the FCC's public statement simply restates what is already in the rules with the exception of the new waiver provision. Reading between the lines, however, I suspect that the FCC does not fully appreciate the nature of emergency drills as these drills are commonly conducted by ARES and other amateur groups. I have a very hard time understanding how communications of the types that I envision during typical emergency drills violate the pecuniary interest rule. Feel free to forward my comments to others as you wish. 73, Mickey K5MC ----- Original Message ----- From: Dale Temple To: Undisclosed-Recipient:; Sent: Tuesday, October 20, 2009 4:36 PM Subject: WOW LOOK AT THIS! http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-2259A1.pdf Hello All, Click on the above. At the Sunday morning Arkansas Razorback Emergency Training Net, 3987.5 at 7:00 AM, I was going to talk about the ARRL Board of Directors statement of policy with respect to the use of Amateur Radio entitled "The Commercialization of Amateur Radio: The Rules, The Risks, the Issues. BUT, Guys and Gals the above Policy Statement by the FCC has knocked that right off the front page. Therefore, Sunday morning, October 25, 3987.5, 7:00 AM I am asking Mickey Cox, K5MD, Delta Division Director, David Norris, K5UZ, Delta Division Vice Director and J.M. Rowe, N5XFW, to present their position on this late breaking news. I know from past emails that J.M. and Mickey have conflicts on Sunday mornings. Therefore, I am asking both Mickey and J.M. to put their position in writing for someone to read to the Sunday morning AM Crisis and Panic Independent Voice of Arkansas Hams. David, if you also have a conflict, likewise send your position to someone to read. If any of you have conflicts Brian, WA5AM, has a web site, w5ami.net where you can click on ARETN audio clips and listen to the net and previous nets, dated for your convenience. 73 Dale
Well, good point, Mickey. I should have been more careful. The overall rule, 97.113(a), prohibits as you say communications in which the licensee or control op of the station has a pecuniary interest. The prohibition on communications on behalf of one's employer is an instance of the case in which the licensee or control op of the station has a pecuniary interest in the communications. But that instance is, the way the rule reads, an absolute. The Commission has determined that all cases in which an employee transmits amateur communications on behalf of ones' employer, that by definition is a communication in which the licensee or control operator has a pecuniary interest, and it is prohibited. I realize that the Commission in 1993, in a report and order (setting forth generally the four part test that Dave's editorial absolutely correctly enunciated) mixed the concepts of (a) the pecuniary interest of the station licensee or control operator with (b) the pecuniary interest of the employer; but that, in my view, was just sloppy work on FCC's part. The rule, which is unequivocal, doesn't refer to the pecuniary interest of the employer anywhere. It speaks only to the pecuniary interest of the control operator or licensee. But all that aside, the communications "on behalf of" (and notice that it doesn't say "for the benefit of") one's employer are prohibited across the board, not only where some actual pecuniary interest flows to the control op/licensee, the employer, or both. That is simply an irrelevancy. I will grant you that FCC has been of little or no help here, but my suggestion is that, if the Board feels that the rule is too severe here and includes overkill, let's deal with the rule. Interpretations of this particular rule, especially those not shared by FCC Enforcement Bureau and WTB staff, are unlikely to produce, in my view, any positive or consistent result, but instead will perpetuate the confusion that now, even after yesterday's release, still exists. I personally think that the rule is proper, even though, in some instances, it yields anomalous results. Perhaps the FCC's waiver process is too tight; but the rule is what it is, and if the Board wants to permit some activities now prohibited, then a rule change should be suggested. So, I continue to suggest that if Amateur communications by an employee are with reference to the business activities of that person's employer, the rule prohibits the communications (absent a waiver), and those communications should be done by volunteers who are not employees of that particular employer. 73, Chris W3KD Christopher D. Imlay Booth, Freret, Imlay & Tepper. P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG -----Original Message----- From: Mickey Cox <mcoxk5mc@bellsouth.net> To: arrl-odv <arrl-odv@reflector.arrl.org>; Chris Imlay <w3kd@aol.com> Sent: Thu, Oct 22, 2009 10:16 am Subject: Re: [arrl-odv:18193] Re: Fw: WOW LOOK AT THIS! Chris, Based on your comments, it sounds to me that Dave needs to make some corrections to his April 2009 QST editorial. In that editorial Dave discussed the "simple" four-part test as follows: 1. Is it expressly prohibited in the rules (music, obscenity, etc.)? 2. Is it transmitted for compensation? 3. Does the control operator have a pecuniary interest, that is, could he or she benefit financially? 4. Does the control operator's employer have a pecuniary interest? Dave then says that if the answer in each case above is "no" than the communication is acceptable to the FCC with one additional caveat: To guard against the systematic use of Amateur Radio for non-amateur purposes, there is a prohibition on "communications, on a regular basis, which could reasonably be furnished alternatively through other radio services." Item four in Dave's (the FCC's?) test makes it rather clear to me that pecuniary interest is the key here, not simply the vague expression "on behalf of one's employer." If push comes to shove, I think the ARRL Board should seriously consider petitioning the FCC to add some language in 97.113 similar in spirit to the RACES language that permits a limited number of hours for emergency drills. Before taking such a drastic step, however, I think we should try to convince Bill Cross that his interpretation of 97.113 is too restrictive. 73, K5MC ----- Original Message ----- From: Chris Imlay To: arrl-odv Sent: Thursday, October 22, 2009 8:28 AM Subject: [arrl-odv:18193] Re: Fw: WOW LOOK AT THIS! Careful, now, Mickey; I agree with you that the term "on behalf of" in Section 97.113(a)(3) is different than "for the pecuniary interest of." "Pecuniary interest" is not the test when the communications are made by an employee. Rather, a communication "on behalf of" one's employer is, as it appears in the rule, an example of prohibited communications. It stands alone. Asking whether a communication "on behalf of" one's employer has any pecuniary benefit to the employer is to apply a test that is not found in the rules. I certainly concede that "on behalf of" one's employer is subject to SOME case-by-case interpretation, but not much, and not so much that if pecuniary benefit to the employer is not present, it is therefore OK. It seems to me that if the communications are with reference to the business activities of the employer, the rule prohibits the communications (absent a waiver). An employee of a hospital participating in drills that include even hypotheticals to prepare for the emergency communications involving the hospital's work is, I will assure you, in the view of the Wireless Bureau and the Enforcement Bureau, not kosher absent a grant of the waiver. 73, Chris W3KD Christopher D. Imlay Booth, Freret, Imlay & Tepper. P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG -----Original Message----- From: Mickey Cox <mcoxk5mc@bellsouth.net> To: arrl-odv <arrl-odv@reflector.arrl.org> Sent: Wed, Oct 21, 2009 11:35 pm Subject: [arrl-odv:18192] Fw: WOW LOOK AT THIS! ODV, Below are some comments I emailed earlier this evening to Dale W5RXU and also forwarded to some Delta Division officials. I think the ARRL Board should show some leadership on this issue by publicly stating that communications "on behalf of one's employer" is NOT necessarily equivalent to communications in which the control operator's employer has a pecuniary interest. It seems to me that the W1AW operator situation should make the ARRL Board realize that it needs to take a strong stand on this issue. 73, Mickey K5MC ----- Original Message ----- From: Mickey Cox To: w5rxu@flash.net Sent: Wednesday, October 21, 2009 7:17 PM Subject: Re: WOW LOOK AT THIS! Dale, The new item in the FCC's public notice dated October 20 is the process in which a government entity conducting a drill can request a waiver of the rule spelled out in 97.113(a)(3). This rule prohibits an amateur station from transmitting communications "in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer." In other words, communications that promote the pecuniary interest of the control operator's employer are prohibited. My guess is that the FCC will rarely grant such waivers. My personal preference is that the FCC should not have even offered the possibility of a waiver as described. However, I continue to believe that communications during drills can be designed such that the communications do not promote the pecuniary interest of the control operator's employer. When I think of a drill such as the ARRL's Simulated Emergency Test (SET), for example, the test messages are designed to be "make believe" to start with and I don't see how such messages/communications promote the pecuniary interest of the control operator's employer. For example, let's assume I'm a ham who is also employed at ABC Hospital. If I transmit a radiogram during the SET from the ABC Hospital club station (or from my home station for that matter) signed by "Dr. John Doe" requesting XYZ medicines, how does that promote the pecuniary interest of my employer? It's simply a test message that I have made up for the drill. Communications "on behalf of one's employer" and communications in which the control operator's employer has a pecuniary interest are not necessarily the same thing. For example, the W1AW operators are paid for operating the club station at ARRL Headquarters; rule 97.113(d) allows them to be compensated and not be in violation of rule 97.113(a)(2). Surely the telegraphy practice and information bulletins transmitted by the W1AW operators are communications "on behalf of their employer" to a significant degree, but these communications do not directly promote the pecuniary interest of the ARRL. Of course, if the bulletins did include such items as encouraging one to become a League member or to donate to the League's spectrum defense fund, etc., then such communications could certainly be considered as promoting the pecuniary interests of the ARRL. (It is important to note that the exception granted in 97.113(c) and 97.113(d) is with regard to communications for hire or material compensation and not to the pecuniary interest of the control operator's employer.) In conclusion, I think the FCC's public statement simply restates what is already in the rules with the exception of the new waiver provision. Reading between the lines, however, I suspect that the FCC does not fully appreciate the nature of emergency drills as these drills are commonly conducted by ARES and other amateur groups. I have a very hard time understanding how communications of the types that I envision during typical emergency drills violate the pecuniary interest rule. Feel free to forward my comments to others as you wish. 73, Mickey K5MC ----- Original Message ----- From: Dale Temple To: Undisclosed-Recipient:; Sent: Tuesday, October 20, 2009 4:36 PM Subject: WOW LOOK AT THIS! http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-2259A1.pdf Hello All, Click on the above. At the Sunday morning Arkansas Razorback Emergency Training Net, 3987.5 at 7:00 AM, I was going to talk about the ARRL Board of Directors statement of policy with respect to the use of Amateur Radio entitled "The Commercialization of Amateur Radio: The Rules, The Risks, the Issues. BUT, Guys and Gals the above Policy Statement by the FCC has knocked that right off the front page. Therefore, Sunday morning, October 25, 3987.5, 7:00 AM I am asking Mickey Cox, K5MD, Delta Division Director, David Norris, K5UZ, Delta Division Vice Director and J.M. Rowe, N5XFW, to present their position on this late breaking news. I know from past emails that J.M. and Mickey have conflicts on Sunday mornings. Therefore, I am asking both Mickey and J.M. to put their position in writing for someone to read to the Sunday morning AM Crisis and Panic Independent Voice of Arkansas Hams. David, if you also have a conflict, likewise send your position to someone to read. If any of you have conflicts Brian, WA5AM, has a web site, w5ami.net where you can click on ARETN audio clips and listen to the net and previous nets, dated for your convenience. 73 Dale
participants (2)
-
Chris Imlay -
Mickey Cox